Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans by the Company 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 of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder. (c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount. (d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit. (e) 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 Eurocurrency 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. (f) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension. (g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower. (h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower. (i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24. (j) 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.
Appears in 4 contracts
Samples: Credit Agreement (Harsco Corp), Amendment Agreement (Harsco Corp), Amendment to Credit Agreement (Harsco Corp)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan relevant Lenders.
(b) Each Except as otherwise provided in Section 2.9(a) or Section 2.25, (i) each payment (including each prepayment) by the Borrower on account of principal of and interest on 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 Lenders, and (ii) the amount of each principal prepayment of the Term Loan LendersLoans 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 paid repaid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.12:00 Noon, New York City time, on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 greater of (i) the Federal Funds Effective RateRate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(ih) This Section 2.18 If any Lender shall not be construed fail to apply to make any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments required to be made by it pursuant to non-Defaulting Lenders as opposed to Defaulting Lenders Section 2.16(f), 2.16(g), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
notwithstanding any contrary provision hereof, (ji) Upon receipt apply any amounts thereafter received by the Administrative Agent for the account of payments on behalf such Lender for the benefit of Lenders, the Administrative Agent shall promptly distribute or the Issuing Lender to satisfy such payments Lender’s obligations to the 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 or Lenders entitled theretounder any such Section, in like funds the case of each of clauses (i) and (ii) above, in any order as received determined by the Administrative AgentAgent in its discretion.
Appears in 3 contracts
Samples: Credit Agreement (Cinemark Usa Inc /Tx), Credit Agreement (Cinemark Holdings, Inc.), Credit Agreement (Cinemark Usa Inc /Tx)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrowers from the Term Loan Lenders hereunder, each payment by the Borrowers on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages, Delayed Draw Term Loan Percentages, Incremental Term Loan Percentages, USD Revolving Credit Percentages or Multicurrency Revolving Credit Percentages, as the case may be, of the Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan relevant Lenders.
(b) Each payment (including each prepayment) by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding under principal amounts of 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 then held by such 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 paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by any Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the any Revolving Credit Commitments and each conversion of Loans under any Borrowing into, or continuation of, a Standby Borrowing of any Type, Revolving Credit Facility shall be allocated made pro rata among according to the respective outstanding principal amounts of such Revolving Credit Loans under such Revolving Credit Facility then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if under such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountFacility.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower the Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim 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 relevant Lenders, at the Payment applicable Funding Office, in Dollars (or, in the case of any payment of principal or interest on any Multicurrency Revolving Credit Loans denominated in an Optional Currency, the applicable Optional Currency) and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(ge) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the respective Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.18(e) shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate ABR Loans under the relevant Facility, on demand, from the applicable Borrower, and, if so recovered, such amount shall no longer be deemed outstanding hereunder.
(hf) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by such Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the respective Borrower.
(ig) This Section 2.18 If any Lender shall not be construed fail to apply to make any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments required to be made by it pursuant to non-Defaulting Lenders as opposed to Defaulting Lenders Section 2.7(b), 2.7(c), 2.18(e), 2.18(f), 2.20(g), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
notwithstanding any contrary provision hereof, (ji) Upon receipt apply any amounts thereafter received by the Administrative Agent for the account of payments on behalf such Lender for the benefit of Lendersthe Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent shall promptly distribute such payments to the Lender or Lenders entitled thereto, in like funds as received by the Administrative Agentits discretion.
Appears in 3 contracts
Samples: Credit Agreement (Conmed Corp), Credit Agreement (Conmed Corp), Credit Agreement (Conmed Corp)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Revolving Commitments shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Percentages or Revolving Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Tranche A Term Loans, Tranche B Term Loans or New Term Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Tranche A Term Loan Lenders, Tranche B Term Lenders or New Term Lenders, as applicable, pro rata according to the respective amounts then due and owing to the applicable Term Loan such Lenders, other than payments pursuant to Section 2.11(c) or 2.24.
(b) Each payment on account of principal mandatory prepayment of the Term Loans outstanding under the Term Loan Facility shall be allocated among between the Tranche A Term Loan Lenders holding such Facility, the Tranche B Term Facility and any New Facility comprising Term Loans, if any, pro rata except as affected by the opt-out provision under Section 2.12(e). Each optional prepayment and mandatory prepayment of the Tranche A Term Loans, Tranche B Term Loans pro rata based on the principal amount of such or New Term Loans held shall be applied to the remaining installments thereof as specified by such Term Loan Lendersthe Borrower. Amounts paid repaid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each Each payment or prepayment (including prepayments) to be made by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments Loans then held by the Revolving Lenders. Each payment (including prepayments) to be made by the Borrower on account of principal of and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, interest on the New Revolving Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans)the New Revolving Loans then held by the New Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(fd) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff setoff, deduction or counterclaim and shall be made prior to 1:00 2:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment made received by any Borrower the Administrative Agent after 1:00 2:00 P.M., New York City time, on any Business Day shall time may be deemed to have been considered received on the next following Business DayDay in the Administrative Agent’s sole discretion. The Administrative Agent shall distribute such payments to the relevant Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(ge) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, Agent on demand, such amount with interest thereon thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive presumptively correct in the absence of manifest demonstrable error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall give notice of such fact to the Borrower and the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate ABR Loans under the relevant Facility, on demand, from the Borrower. Nothing herein shall be deemed to limit the rights of the Administrative Agent or the Borrower against any Defaulting Lender.
(hf) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the relevant Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by such 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, 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 3 contracts
Samples: Credit Agreement (Booz Allen Hamilton Holding Corp), Credit Agreement (Booz Allen Hamilton Holding Corp), Credit Agreement (Booz Allen Hamilton Holding Corp)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company any Borrower from the Term Loan Lenders hereunder, each payment by any Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Terms Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by any Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of Credit.
(ed) 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 Eurocurrency 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.
(fe) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(ih) This Section 2.18 2.16 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment expressly permitted under Section 10.06. This Section 2.18 2.16 shall be subject to the provisions of Section 2.22 2.20 and Section 2.242.22.
(ji) 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.
Appears in 3 contracts
Samples: Refinancing Amendment and Joinder Agreement (Verint Systems Inc), Credit Agreement (Verint Systems Inc), Credit Agreement (Verint Systems Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan 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 then due and owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Subject to Section 2.18(d), each mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities in accordance with the Borrower’s instructions. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the 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 first, in direct order of the next four scheduled installments thereof to become due under Section 2.3(a) or (b), and thereafter, pro rata based on the remaining outstanding principal amount of the remaining installments. Amounts paid repaid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(d) Notwithstanding anything to the contrary in Sections 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 mandatory payment applicable to the Tranche B Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.12 that is allocated to Tranche B Term Loans (such amount, the “Mandatory Prepayment Amount”), at any time when Tranche A Term Loans remain outstanding, the Borrower will, on the date specified in Section 2.12 for such prepayment, (A) 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 Prepayment Option Notice as described below and (B) deposit with the Administrative Agent the Mandatory Prepayment Amount. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be substantially in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date which is five Business Days after the date of such Prepayment Option Notice (the “Prepayment Date”) the Tranche B Term Loans of such Lender by an amount equal to the portion of the Mandatory Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans. On the Prepayment Date, the Administrative Agent shall (i) apply the Mandatory Prepayment Amount toward prepayment of the outstanding Tranche B Term Loans in respect of which Lenders have accepted mandatory prepayment as described above and (ii) apply the remaining portion of the Mandatory Prepayment Amount not accepted by the Tranche B Term Loan Lenders toward prepayment of the Tranche A Term Loans. The procedures described above in this paragraph shall not be applicable in the case of a prepayment in full of all Term Loans.
(e) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demandwithin three Business Days after demand therefor, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 2 contracts
Samples: Credit Agreement (UCI Holdco, Inc.), Credit Agreement (Chefford Master Manufacturing Co Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Revolving Lenders hereunder, each payment by the Borrower on account of any commitment fee payable with respect to the Revolving Commitments and any reduction of the Revolving Commitments of the Revolving Lenders shall be made pro rata according to the respective Revolving Percentages of the relevant Revolving Lenders. Each borrowing by the Borrower from the Term Loan B Lenders hereunder, each payment by the Borrower on account of any commitment fee payable with respect to the Term Loan B Commitments and any reduction of the Term Loan B Commitments of the Term Loan B Lenders shall be made pro rata according to the respective Term Loan B Percentages of the relevant Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan B Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Revolving Loans shall be made pro rata according to the respective outstanding under principal amounts of the Revolving Loans then held by the Revolving Lenders.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loan Facility B Loans shall be allocated among made pro rata according to the respective outstanding principal amounts of the Term Loan B Loans then held by the Term Loan B Lenders holding such (except as otherwise provided in Sections 2.12(b) and 2.25(b)). The amount of each principal prepayment of the Term Loan B Loans pro rata based on of any Term Loan B Lender shall be applied to reduce ratably the principal amount then remaining installments of the Term Loan B Loans of such Term Loans held by such Loan B Lender based upon the then remaining principal amounts thereof. Amounts repaid or prepaid on account of the Term Loan Lenders. Amounts paid or prepaid in respect of Term B Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant LendersRevolving Lenders (in the case of a payment made pursuant to the Revolving Facility) or the Term Loan B Lenders (in the case of a payment made pursuant to the Term Loan B Facility), at the Payment Funding Office, in Dollars and in immediately available funds. Any The Administrative Agent shall distribute such payments to the Revolving Lenders (in the case of a payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed pursuant to have been on the next following Business DayRevolving Facility) or the Term Loan B Lenders (in the case of a payment made pursuant to the Term Loan B Facility) promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gi) Unless the Administrative Agent shall have been notified in writing by any Revolving Lender prior to a Borrowing borrowing under the Revolving Facility that such Revolving Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Revolving 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 Revolving 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 Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Revolving Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Revolving Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Revolving Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum then applicable to Base Rate Loans under the relevant FacilityABR Loans, on demand, from the BorrowerBorrower (it being understood and agreed that any payment by the Borrower pursuant to the foregoing shall be without prejudice to its rights against any defaulting Revolving Lender.
(hii) Unless the Administrative Agent shall have been notified in writing by any Term Loan B Lender prior to a borrowing under the Term Loan B Facility that such Term Loan B 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 Term Loan B 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 Term Loan B 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 Term Loan B Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Term Loan B Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Term Loan B Lender’s share of such borrowing is not made available to the Administrative Agent by such Term Loan B Lender within three Business Days of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum then applicable to ABR Loans, on demand, from the Borrower (it being understood and agreed that any payment by the Borrower pursuant to the foregoing shall be without prejudice to its rights against any defaulting Term Loan B Lender).
(f) Unless the Administrative Agent shall have been notified in writing by the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such 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 Revolving Lenders (in the case of payment made pursuant to the Revolving Facility) or the Term Loan B Lenders (in the case of a payment made pursuant to the Term Loan B Facility) their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Revolving Lender (in the case of payment made pursuant to the Revolving Facility) or each Term Loan B Lenders (in the case of a payment made pursuant to the Term Loan B Facility) 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 2 contracts
Samples: Credit Agreement (Time Warner Telecom Inc), Credit Agreement (Time Warner Telecom Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Term Loan Percentages of the Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit applicable Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). .
(b) Each payment (including each prepayment under Section 4.03, but excluding any prepayment under Section 4.02) by the Borrower on account of principal of any Competitive Borrowing and interest on the Term Loans shall be allocated made pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with according to the respective outstanding principal amounts of their outstanding Competitive the Term Loans comprising then held by the Term Lenders (except to the extent that any applicable Extension Amendment, Refinancing Amendment or any Incremental Amendment for any Class of Extended Term Loans, Refinancing Term Loans or Incremental Term Loans, respectively, provides that such Borrowing. Each payment of interest on any Competitive Borrowing Extended Term Loans, Refinancing Term Loans or Incremental Term Loans shall be allocated entitled to less than pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts treatment; provided that any prepayment of accrued and unpaid interest on their outstanding Competitive Term Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized required as a result of such Competitive Borrowingthe incurrence of Credit Agreement Refinancing Indebtedness shall be applied solely to the applicable Class or tranche of Refinanced Debt). Each Revolving Credit Lender agrees that prepayment of the Tranche B Term Loans under Section 4.03 shall be applied first, in computing such Revolving Credit Lender’s portion direct order of any Borrowing maturity to the next eight scheduled installments of principal due in respect of Tranche B Term Loans, second, on a pro rata basis among the installments of principal remaining to be made hereunderwith respect of Tranche B Term Loans and third, if no Tranche B Term Loans are outstanding, to the Administrative Agent mayprepayment of Revolving Loans in accordance with Section 4.09(c) (with no corresponding permanent reduction of commitments). Each prepayment of any other Class of Term Loans shall be applied as agreed between the Borrower and the Lenders in respect of such Term Loans.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Loans then held by the Revolving Lenders; provided that prepayments under Section 4.03 shall first be applied as provided by Section 4.09(b) and thereafter, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage accordance with this Section 4.09(c) (with no corresponding permanent reduction of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountcommitments).
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff setoff, defense or counterclaim 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 relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment made The Administrative Agent shall promptly distribute to each Lender in like funds as received any payments received by any Borrower after 1:00 P.M., New York City time, the Administrative Agent on any Business Day shall be deemed to have been on the next following Business Daybehalf of such Lender. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(ge) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hf) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such 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 such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(ig) This Section 2.18 4.09 shall not be construed to apply to any payment made by any the Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment expressly permitted under Section 10.0611.06. This Section 2.18 4.09 shall be subject to the provisions of Section 2.22 4.16 and Sections 12.01, 12.02 and 12.03. This Section 2.244.09 shall not be construed to apply to any payment made in connection with any assignment, purchase or other transaction expressly permitted under Section 11.06(g) or 11.06(h).
(j) 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.
Appears in 2 contracts
Samples: Credit Agreement (Roundy's, Inc.), Credit Agreement (Roundy's, Inc.)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans by the Company any Borrower from the Term Loan Lenders hereunder, each payment by any Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Terms Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by any Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made first, to Base Rate ABR Loans under such Facility and second, to Eurocurrency Eurodollar Loans under such Facility. Each payment of the Loans (except in the case of Revolving Credit Loans that are Base Rate ABR Loans) shall be accompanied by accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i1) the Federal Funds Effective Rate and (ii2) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest demonstrable error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such 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 Base Rate ABR Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(ih) This Section 2.18 2.16 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment expressly permitted under Section 10.06. This Section 2.18 2.16 shall be subject to the provisions of Section 2.22 2.20 and Section 2.242.22.
(ji) 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.
Appears in 2 contracts
Samples: Credit Agreement (Verint Systems Inc), Credit Agreement (Verint Systems Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing borrowing by any Borrower from the Lenders hereunder, each payment by the Parent Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective applicable Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11 and any payment pursuant to Section 2.3) by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied to scheduled installments of the Term Loans in direct order of maturity or as otherwise directed by the Parent Borrower. Each prepayment pursuant to Section 2.11 by the Parent Borrower on account of principal of and interest on a Class of Term Loans shall be made pro rata according to the respective principal amounts of such Class of Term Loans then held by the Company from Term Lenders and shall be applied to the installments of the Term Loan Lenders hereunderLoans as elected by the Parent Borrower. Each payment by the Parent Borrower pursuant to Section 2.3, including on the applicable Maturity Date for any Class of Term Loans, shall be made pro rata according to the respective outstanding principal amounts of such Class of Term Loan Percentages of Loans held by the Term Loan LendersLenders of such Class. Each payment of interest in respect 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 each payment in respect of fees payable hereunder interest on the Revolving Loans (other than Foreign Currency Loans) shall be applied to the amounts of such obligations owing to the Term Loan Lenders made pro rata according to the respective outstanding principal amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment in respect (including each prepayment) by any Borrower on account of Reimbursement Obligations in respect principal of and interest on any Letter of Credit Foreign Currency Loan shall be made pro rata according to each Issuing Lender that issued the respective outstanding principal amounts of such Letter of CreditForeign Currency Loan then held by the applicable Revolving Lenders.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment All payments (including prepayments) to be made by any Borrower after 1:00 P.M., New York City time, hereunder on any Business Day account of principal or interest on the Foreign Currency Loans shall be deemed to have been made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the next following Business Daydue date thereof to the Administrative Agent, for the account of the applicable Revolving Lenders, at the office, and prior to the time for payment for the relevant currency, set forth on the Administrative Schedule. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing DateLender, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable equal to Base the greater of (i) the daily average Federal Funds Effective Rate Loans under and (ii) a rate determined by the relevant FacilityAdministrative 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.
(hg) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any such Borrower hereunder that such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by 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 RateRate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any such Borrower.
(ih) This Section 2.18 If any Lender shall not be construed fail to apply to make any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments required to be made by it pursuant to non-Defaulting Lenders as opposed to Defaulting Lenders Section 2.7(b), 2.7(c), 2.18(f), 2.20(e), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
notwithstanding any contrary provision hereof, (ji) Upon receipt apply any amounts thereafter received by the Administrative Agent for the account of payments on behalf such Lender for the benefit of Lendersthe Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent shall promptly distribute such payments to the Lender or Lenders entitled thereto, in like funds as received by the Administrative Agentits discretion.
Appears in 2 contracts
Samples: Credit Agreement (Tempur Sealy International, Inc.), Credit Agreement (Tempur Sealy International, Inc.)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities in accordance with the Borrower’s instructions. 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. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.2:00 p.m., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, demand from the BorrowerBorrower (i) on the same Business Day if demand is made by the Administrative Agent on or prior to 11:00 a.m., New York City time and (ii) on the next Business Day if demand is made by the Administrative Agent after 11:00 a.m., New York City time.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(jh) 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. Notwithstanding the foregoing, if the Administrative Agent receives any payment (whether voluntarily or involuntarily, pursuant to events or proceedings of the nature referred to in Section 8(f), or otherwise) (the amount of such payment, the “Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as a Term Loan Lender, Revolving Credit Lender or L/C Participant), and at the time of such receipt such Lender, in its capacity as L/C Participant, is in default in any of its obligations pursuant to Section 3.4(a) (the amount of such obligations in default, the “Defaulted Amount”), the Administrative Agent may withhold from the Payment Amount an amount up to the Defaulted Amount, and apply the amount so withheld toward payment to the relevant Issuing Lender of the Defaulted Amount or, if applicable, toward reimbursement of any other Person that has previously reimbursed such Issuing Lender for the Defaulted Amount.
(i) Prior to the 2014 Revolving Credit Termination Date, no prepayments of Revolving Credit Loans shall be made in respect of the outstanding 2014 Revolving Credit Loans and the ratable share of any such prepayment that would, but for this clause (i) be paid on account of any 2014 Revolving Credit Loan shall be allocated to the Revolving Credit Lenders holding Revolving Credit Loans (other than 2014 Revolving Credit Loans) in accordance with their respective Revolving Credit Percentages.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (National CineMedia, LLC)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower or any Foreign Borrower from the Term Loan Lenders hereunder, each payment by the Borrower or any Foreign Borrower on account of any Commitment fee or Letters of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages, Dollar Revolving Credit Percentages, Multicurrency Revolving Credit Percentages or German Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment (other than any prepayments) 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 Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.12 to be applied to Term Loans (excluding, so long as no Default or Event of Default exists and is continuing, mandatory prepayments required by Section 2.12(a)) shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans and, provided that no Default or Event of Default exists and is continuing, each mandatory prepayment required by Section 2.12(a) shall be allocated among the Term Loan Facilities in accordance with the Borrower’s instructions. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the 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 in the case of mandatory prepayments and in direct order of maturity in the case of voluntary prepayments. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Dollar Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans)the Dollar Revolving Credit Loans then held by the Dollar Revolving Credit Lenders. Each payment in respect of principal Dollar Reimbursement Obligations in respect of any Competitive Borrowing Dollar Letter of Credit shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit Issuing Lender that issued such Dollar Letters of any applicable Alternative Currency) amountCredit.
(d) Each payment (including each prepayment) by the Borrower or any Foreign Borrower on account of principal of and interest on the Multicurrency Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Multicurrency Revolving Credit Loans then held by the Multicurrency Revolving Credit Lenders. Each payment in respect of Reimbursement Obligations in respect of any Multicurrency Letter of Credit shall be made to each the Multicurrency Issuing Lender that issued such Letter Multicurrency Letters of Credit.
(e) Each prepayment (including each prepayment) by the German Borrower on account of principal of and interest on the German Revolving Credit Loans shall be allocated among the German Revolving Credit Facilities pro rata according to the respective outstanding principal amounts of German Revolving Credit Loans under such Facilities. Each payment in respect of Reimbursement Obligations in respect of any German Letter of Credit shall be made to the German Issuing Lender that issued such German Letters of Credit.
(f) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency Loans under such Facility. Each payment of the Loans (except in the case of Dollar 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.
(fg) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars the currency of the relevant loan and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.12:00 Noon, New York City time, on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received.
(h) All payments (including prepayments) to be made by any Foreign Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made at the time and manner specified in the Administrative Schedule, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in the currency of the relevant loan and in immediately available funds. Any payment made by any Foreign Borrower after such time on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received.
(i) All payments (including prepayments) to be made by the German Borrower hereunder with respect to the German Revolving Credit Facility, whether on account of principal, interest, fees or otherwise, shall be made prior to 12:00 Noon, Frankfurt time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the German Payment Office, in Euros and in immediately available funds. Any payment made by the German Borrower after 12:00 Noon, Frankfurt time, on any Business Day shall be deemed to have been made on the next following Business Day. The Administrative Agent shall distribute such payments to the German Revolving Credit Lenders promptly upon receipt in like funds as received.
(j) If any payment hereunder under clauses (g), (h), or (i) above (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gk) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower or any Foreign 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 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 Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower or such Foreign Borrower, as applicable.
(hl) Unless the Administrative Agent shall have been notified in writing by the Borrower or any Borrower Foreign Borrower, as applicable, prior to the date of any payment due to be made by the Borrower or any Borrower Foreign Borrower, as applicable, hereunder that the Borrower or such Borrower Foreign Borrower, as applicable, will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower or such Foreign 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 such Borrower Foreign 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 any Foreign Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 2 contracts
Samples: Credit Agreement (Bucyrus International Inc), Credit Agreement (Bucyrus International Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company any Borrower from the Term Loan Lenders hereunder, each payment by any Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made (i) with respect to obligations of the Canadian Borrower under the Revolving Credit Facilities, allocated among the Revolving Credit Facilities pro rata based on the Revolving Credit CA Facility Percentage and the Revolving Credit US/CA Facility Percentage, as applicable, and (ii) otherwise, pro rata according to the respective US Term Loan Percentages, Canadian Term Loan Percentages or Revolving Credit US/CA Percentage, as the case may be, of the Term Loan relevant Lenders. Each payment (other than prepayments) in respect of principal in respect of the Term Loans 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 Term Loan Lenders pro rata according to the respective amounts then due and owing to the Lenders (and with respect to amounts owed by the Canadian Borrower under the Revolving Credit Facilities, allocated among the Revolving Credit Facilities pro rata based on the applicable Term Loan LendersRevolving Credit Facility Percentage).
(b) Each optional and mandatory payment on account (including prepayments) required by Section 2.13 to be applied to the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of principal Term Loans under such Facilities. Each payment (including each prepayment) of the Term Loans outstanding under the 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 remaining installments of such Term Loans ratably in accordance with the then outstanding amounts thereof. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction prepayment) of the Revolving Credit Commitments and each conversion Loans of any Borrowing into, or continuation of, a Standby Borrowing of any Type, the Canadian Borrower outstanding under the Revolving Credit Facilities shall be allocated among the Revolving Credit Facilities, pro rata, based on the Revolving Credit CA Facility Percentage and the Revolving Credit US/CA Facility Percentage, as applicable, and then to the Revolving Credit Lenders with respect to such Revolving Credit Facility, pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans of the Canadian Borrower then held by such Revolving Credit Lenders. Each payment (including each prepayment) of the Revolving Credit Loans of the US Borrower shall be allocated among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if holding such Revolving Credit Commitments shall have expired or been terminatedLoans, in accordance with pro rata, according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments Loans of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing US Borrower then held by such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Lenders. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans (or Canadian Prime Rate Loans, if applicable), under such Facility and and, second, to Eurocurrency Eurodollar Loans (or Bankers’ Acceptances, if applicable), 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 or Canadian Prime Rate Loans) shall be accompanied by accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and counterclaim. All payments (including prepayments) to be made by the US Borrower hereunder, whether on account of principal, interest, fees or otherwise 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 relevant Lenders, at the Payment Office, in Dollars (or Canadian Dollars, as applicable) and in immediately available funds. Any such payment made by any the US Borrower after 1:00 P.M.11:00 A.M., New York City time, on any Business Day shall be deemed to have been made on the next following Business Day. The Administrative Agent shall distribute such payments to the relevant Lenders promptly upon receipt in like funds as received. All payments (including prepayments) to be made by the Canadian Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made prior to 11:00 A.M., Toronto time, on the due date thereof to the Canadian Agent, for the account of the relevant Lenders, at the Canadian Payment Office, in Canadian Dollars (or Dollars, as applicable) and in immediately available funds. Any payment made by the Canadian Borrower after 11:00 A.M., Toronto time, on any Business Day shall be deemed to have been made on the next following Business Day. The Canadian Agent shall distribute such payments to the relevant Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency Loansthe Eurodollar Loans and Bankers’ Acceptances) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan or Bankers’ Acceptance becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gf) Unless the Administrative Agent or the Canadian Agent, as applicable, shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative applicable Agent, the Administrative such Agent may assume that such Lender is making such amount available to the Administrative such Agent, and the Administrative such Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent or the Canadian Agent, as applicable, by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent or the Canadian Agent, as applicable, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate plus 0.50% for amounts in Dollars and the interbank offered rate quoted by the Canadian Agent plus 0.50% for amounts in Canadian Dollars for the period until such Lender makes such amount immediately available to such Agent. A certificate of the applicable Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such borrowing is not made available to the applicable Agent by such Lender within three Business Days after such Borrowing Date, the applicable Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the applicable Borrower (ii) a rate determined by and such amounts shall be applied solely to the amounts owed to the Administrative Agent, notwithstanding the other provisions of this Section 2.19). If the Administrative Agent shall have been notified in accordance writing by any Lender prior to the Closing Date that such Lender will not make the amount that would constitute its share of the borrowings on the Closing Date available to the Administrative Agent, the Administrative Agent may, in its sole discretion, and in reliance upon this Section 2.19(f), make available to the relevant Borrowers a corresponding amount. If at the request of any Lender, the Administrative Agent so agrees to make such amount available to the relevant Borrowers, such Lender hereby agrees that such amount shall be made available to the Administrative Agent no later than the required time on the Second Business Day after the original Borrowing Date therefor and such Lender shall pay to the Administrative Agent such amount with banking industry rules on interest thereon at a rate equal to the daily average Federal Funds Effective Rate plus 0.50% for amounts in Dollars and the interbank compensation, offered rate quoted by the Canadian Agent plus 0.50% for amounts in Canadian Dollars for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three two 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 Base Rate Loans under the relevant Facility, on demand, from the Borrowerapplicable Borrower (and such amounts shall be applied solely to the amounts owed to the Administrative Agent, notwithstanding the other provisions of this Section 2.19).
(hg) Unless the Administrative Agent or the Canadian Agent, as applicable, shall have been notified in writing by any the relevant Borrower prior to the date of any payment due to be made by any such Borrower hereunder that such Borrower will not make such payment to the Administrative applicable Agent, the Administrative applicable Agent may assume that the such Borrower is making such payment, and the Administrative applicable 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 applicable Agent by such Borrower within three Business Days after such due date, the Administrative applicable Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective RateRate for amounts in Dollars and the interbank offered rate quoted by the Canadian Agent for amounts in Canadian Dollars. Nothing herein shall be deemed to limit the rights of the Administrative Agent, the Canadian Agent or any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 2 contracts
Samples: Credit Agreement (Waste Services, Inc.), Credit Agreement (Waste Services, Inc.)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities in accordance with the Borrower’s instructions. 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. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.2:00 p.m., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, demand from the BorrowerBorrower (i) on the same Business Day if demand is made by the Administrative Agent on or prior to 11:00 a.m., New York City time and (ii) on the next Business Day if demand is made by the Administrative Agent after 11:00 a.m., New York City time.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(jh) 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. Notwithstanding the foregoing, if the Administrative Agent receives any payment (whether voluntarily or involuntarily, pursuant to events or proceedings of the nature referred to in Section 8(f), or otherwise) (the amount of such payment, the “Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as a Term Loan Lender, Revolving Credit Lender or L/C Participant), and at the time of such receipt such Lender, in its capacity as L/C Participant, is in default in any of its obligations pursuant to Section 3.4(a) (the amount of such obligations in default, the “Defaulted Amount”), the Administrative Agent may withhold from the Payment Amount an amount up to the Defaulted Amount, and apply the amount so withheld toward payment to the relevant Issuing Lender of the Defaulted Amount or, if applicable, toward reimbursement of any other Person that has previously reimbursed such Issuing Lender for the Defaulted Amount.
Appears in 2 contracts
Samples: Credit Agreement (National CineMedia, Inc.), Credit Agreement (National CineMedia, Inc.)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities in accordance with the Borrower’s instructions. 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. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.2:00 p.m., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, demand from the BorrowerBorrower (i) on the same Business Day if demand is made by the Administrative Agent on or prior to 11:00 a.m., New York City time and (ii) on the next Business Day if demand is made by the Administrative Agent after 11:00 a.m., New York City time.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(jh) 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. Notwithstanding the foregoing, if the Administrative Agent receives any payment (whether voluntarily or involuntarily, pursuant to events or proceedings of the nature referred to in Section 8(f), or otherwise) (the amount of such payment, the “Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as a Term Loan Lender, Revolving Credit Lender or L/C Participant), and at the time of such receipt such Lender, in its capacity as L/C Participant, is in default in any of its obligations pursuant to Section 3.4(a) (the amount of such obligations in default, the “Defaulted Amount”), the Administrative Agent may withhold from the Payment Amount an amount up to the Defaulted Amount, and apply the amount so withheld toward payment to the relevant Issuing Lender of the Defaulted Amount or, if applicable, toward reimbursement of any other Person that has previously reimbursed such Issuing Lender for the Defaulted Amount.
(i) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in L/C Disbursements or Swing Line Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in L/C Disbursements and Swing Line Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in L/C Disbursements and Swing Line Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in L/C Disbursements and Swing Line Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of 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.
Appears in 2 contracts
Samples: Credit Agreement (National CineMedia, Inc.), Credit Agreement (National CineMedia, Inc.)
Pro Rata Treatment and Payments. (a) Each Borrowing Except for the borrowing of Term the Third Amendment Incremental Revolving Credit Loans which shall be borrowed pursuant to Section 2.2(a)(ii), each borrowing by the Company Borrower from the Term Loan Lenders hereunder, hereunder shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each Subject to clause (i) below with respect to Revolving Credit Loans, each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders. Subject to clause (i) below with respect to Revolving Credit Loans, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Revolving Credit Commitments of the Lenders shall be made pro rata according to the Revolving Credit Percentages of the Revolving Credit Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each payment (including each prepayment) on account of principal of the Term Loans outstanding under the 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. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby BorrowingSubject to clause (i) below, each payment or prepayment (including each prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender Bank that issued such Letter of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency Eurodollar 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 accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars the relevant currency and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M., 12:00 Noon (New York City time, ) on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Rate Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(f) Unless the Administrative Agent shall have been notified by any Lender prior to the applicable Borrowing Date that such Lender does not intend to make available to the Administrative Agent the amount of such Lender’s Loan requested on such Borrowing Date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such Borrowing Date and the Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the Borrower a corresponding amount on such Borrowing Date. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Borrowing Date until the date such amount is paid to the Administrative Agent, at the customary rate set by the Administrative Agent for the correction of errors among banks for three (3) Business Days and thereafter at the Base Rate. In the event that (i) the Administrative Agent declines to make a requested amount available to the Borrower until such time as all applicable Lenders have made payment to the Administrative Agent, (ii) a Lender fails to fund to the Administrative Agent all or any portion of the Loans required to be funded by such Lender hereunder prior to the time specified in this Agreement and (iii) such Lender’s failure results in the Administrative Agent failing to make a corresponding amount available to the Borrower on the Borrowing Date, at Administrative Agent’s option, such Lender shall not receive interest hereunder with respect to the requested amount of such Lender’s Loans for the period commencing with the time specified in this Agreement for receipt of payment by the Borrower through and including the time of the Borrower’s receipt of the requested amount. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent together with interest thereon, for each day from such Borrowing Date until the date such amount is paid to the Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Class of Loans. Nothing in this Section 2.15(f) shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(jh) 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.
(i) Notwithstanding anything in this Agreement to the contrary, on or prior to the earlier of (x) the Conversion Date and (y) the date on which all outstanding Third Amendment Incremental Revolving Credit Loans have been repaid, (i) each payment of interest in respect of Third Amendment Incremental Revolving Credit Loans and each payment in respect of fees payable hereunder with respect thereto shall be applied solely to the amounts of such obligations owing to Citizens Bank of Pennsylvania and the Revolving Credit Lenders agree to such application on a non-pro rata basis, (ii) each payment by the Borrower on account of any commitment fee payable in connection with the Third Amendment Incremental Revolving Credit Loans and any reduction of the Incremental Revolving Credit Commitments corresponding to the Third Amendment Incremental Revolving Credit Loans shall be made solely to Citizens Bank of Pennsylvania and the Revolving Credit Lenders agree to such application on a non-pro rata basis and (iii) the payment (including each prepayment) by the Borrower on account of principal of the Third Amendment Incremental Revolving Credit Loans shall be made solely to Citizens Bank of Pennsylvania and the Revolving Credit Lenders agree to such application on a non-pro rata basis.
Appears in 2 contracts
Samples: Credit Agreement (New Media Investment Group Inc.), Credit Agreement (New Media Investment Group Inc.)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company of Initial Term Loans shall be made ratably from the Initial Term Loan Lenders hereunderin accordance with the respective Initial Term Loan Commitment Percentages thereof. Each borrowing by the Company of Deferred Draw Term Loans shall be made ratably from the Deferred Draw Term Loan Lenders in accordance with the respective Deferred Draw Term Loan Commitment Percentages thereof. Each borrowing by the Company of Revolving Credit Loans, and each purchase by the Multi-Currency Lenders of participating interests in Local Loans and Acceptances, shall be made pro rata according ratably from the Multi-Currency Lenders in accordance with the respective Multi-Currency Commitment Percentages thereof. Each borrowing by any Local Borrower of Local Loans and Acceptances shall be made from the Local Fronting Lender with respect to the respective Term Loan Percentages of the Term Loan Lendersrelevant Denomination Currency. Each borrowing by an Acquisition Borrower of Syndicated Acquisition Loans shall be made ratably from the Acquisition Direct Lenders in accordance with the respective Acquisition Loan Commitment Percentages thereof. Each Borrowing by an Acquisition Borrower of Fronted Acquisition Loans shall be made from the Acquisition Fronting Lender with respect thereto.
(b) Whenever any payment received by the Administrative Agent under this Agreement or any Note is insufficient to pay in full all amounts then due and payable to the Administrative Agent and the Lenders under this Agreement, the Notes and the Drafts:
(i) If the Administrative Agent has not received a Payment Sharing Notice (or if the Administrative Agent has received a Payment Sharing Notice but the Event of Default specified in such Payment Sharing Notice has been cured or waived in accordance with the provisions of subsection 17.1), such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the following order: first, to the payment of interest fees and expenses due and payable to the Administrative Agent under and in connection with this Agreement; second, to the payment of all expenses due and payable under subsection 17.6, ratably among the Lenders in accordance with the aggregate amount of such payments owed to each such Lender; third, to the ratable payment of fees due and payable under subsection 10.14 and to the payment of letter of credit commissions in respect of the Term Letters of Credit (ratably among the Lenders in accordance with the relevant Commitment Percentage of each Lender) and to the payment of interest then due and payable on the Loans (including, in any event, the payment of the portion of the face amount of any Draft which is in excess of the discounted proceeds of the Acceptance created therefrom) and under the Notes (ratably in accordance with the aggregate amount of interest owed to each such Lender); fourth, to the payment of the principal amount of the Loans and the Notes which is, and to the payment of any Drafts and Reimbursement Obligations which are, then due and payable, ratably among the Lenders in accordance with the aggregate principal amount owed to each payment in respect of fees payable hereunder such Lender (provided that amounts owing to (x) the Multi-Currency Lenders shall be applied to the ratable payment of all amounts owing in respect of participating interests that are owed to the Swing Line Lender, each Issuing Lender and each Local Fronting Lender by any Non-Funding Lender before the application of such amounts to other obligations owing to the Term Loan Multi-Currency Lenders pro rata according pursuant to this clause "fourth" and (y) the Acquisition Fronting Lenders shall be applied to the respective ratable payment of all amounts owing in respect of participating interests that are owed to the relevant Acquisition Fronting Lender by any Non-Funding Lender before the application of such amounts to other obligations owing to the Acquisition Direct Lenders pursuant to this clause "fourth"); and fifth, to the payment of any other outstanding Payment Obligations then due and owing payable, ratably among the Lenders in accordance with the aggregate amount owed to each Lender; and any balance shall be returned to the applicable Term Loan Lenders.Company (for its own account or as agent for the relevant Borrowing Subsidiary); or
(bii) Each If the Administrative Agent has received a Payment Sharing Notice which remains in effect, all payments received by the Administrative Agent under this Agreement or any Note shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the following order: first, to the payment on account of principal all amounts described in clauses "first" through "third" of the Term Loans outstanding under foregoing clause (i), in the Term Loan Facility shall be allocated among order set forth therein; second, to the Term Loan Lenders holding such Term Loans pro rata based on payment of the principal amount of all Loans and Notes, and to the payment of any Acceptances and Reimbursement Obligations, regardless of whether any such Term Loans held by amount is then due and payable, ratably among the Lenders in accordance with the aggregate principal amount owed to each such Term Loan Lenders. Amounts paid or prepaid Lender (provided that amounts owing to (x) the Multi-Currency Lenders shall be applied to the ratable payment of all amounts owing in respect of Term Loans may not be reborrowed. For participating interests that are owed to the avoidance Swing Line Lender, each Issuing Lender and each Local Fronting Lender by any Non-Funding Lender before the application of doubt, Section 2.18(a) such amounts to other obligations owing to the Multi-Currency Lenders pursuant to this clause "second" and (by) do not prohibit non pro rata the Acquisition Fronting Lenders shall be applied to the ratable payment of all amounts owing in respect of participating interests that are owed to the relevant Acquisition Fronting Lender by any Non-Funding Lender before the application of such amounts to other obligations owing to the Acquisition Direct Lenders pursuant to this clause "fourth"); and third, to the payment of any other Payment Obligations, ratably among the Lenders in accordance with the aggregate amount owed to each Lender; and any balance shall be returned to the Company (for its own account or as agent for the relevant Borrowing Subsidiary); provided, however, that any payments received on account of differing Classes a Local Loan or an Acceptance shall be applied to the payment of Term Loans principal, interest, fees and other amounts owing on account of such Local Loan or Acceptance, as the case may be, with any balance after the payment in full of such Local Loan being (to the extent otherwise permitted under applicable law) applied by the Administrative Agent to other amounts owing hereunder.
(c) Except as required under Section 2.22 or as provided Notwithstanding the provisions of subsection 10.16(b), on any date when and to the extent that, in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment reasonable determination of the Commitment FeesAdministrative Agent in its sole discretion, each reduction of the Revolving Credit Commitments Borrowers would be able, under the terms and each conversion of any Borrowing intoconditions hereof, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among to reborrow the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part amount of such Competitive Borrowingpayment (or otherwise obtain additional extensions of credit) pro rata in accordance with under the Aggregate Commitment and to satisfy any conditions precedent to such respective Revolving Credit Commitments; providedreborrowing (or other extension of credit), however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s no portion of any Borrowing such payment shall be distributed to be made hereunderany Lender (a "Non-Funding Lender") which has (x) failed to make a Loan or Refunded Swing Line Loan or to purchase (or otherwise make any payment on account of) any participating interest held by such Non-Funding Lender in any Reimbursement Obligation, Acceptance or Local Loan or (y) given notice to the Company, any Fronting Lender or the Administrative Agent maythat it will not make, or that it has disaffirmed or repudiated any obligation to make, any Loans or Refunded Swing Line Loans, or to purchase (or otherwise make any payment on account of) any participating interest held by such Non-Funding Lender in any Reimbursement Obligation, Acceptance or Local Loan, in its discretionany such case by reason of the provisions of the Financial Institution Reform, round each Revolving Credit Lender’s Revolving Credit Percentage Recovery and Enforcement Act of such Borrowing 1989 or otherwise (other than as the result of a good faith belief that the conditions precedent to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountborrowing set forth in subsection 12.3 have not been satisfied).
(d) Each payment in respect All payments (including prepayments) to be made by the Company on account of Reimbursement Obligations in respect of any Letter of Credit principal, interest and fees (other than those relating to Local Loans and Acceptances) shall be made without set-off or counterclaim and shall be made to each Issuing Lender the Administrative Agent for the account of the relevant Lenders (or, in the case of payments on account of Swing Line Loans, to the Administrative Agent for the account of the Swing Line Lender) at the office of the Administrative Agent specified in subsection 17.3, or at such other location as the Administrative Agent may direct, on or prior to 1:00 P.M., New York City time, in lawful money of the United States of America (or, in the case of Acquisition Loans which are denominated in Approved Acquisition Currencies, in such Approved Acquisition Currency) and in immediately available funds. The Administrative Agent shall distribute such payments in accordance with the provisions of subsection 10.16(b) promptly upon receipt in like funds as received; provided that issued such Letter payments received by the Administrative Agent on account of Creditinterest or fees on the Local Loans and Acceptances may be held by the Administrative Agent and distributed to the Multi-Currency Lenders not less frequently than weekly.
(e) The application of any payment of Loans under any Facility All payments (including optional and mandatory prepayments) to be made by any Local Borrower on account of principal, interest and fees relating to Local Loans and Acceptances shall be made firstwithout set-off or counterclaim and shall be made to the Local Fronting Lender to which such amounts are owing at the office of such Local Fronting Lender specified in Schedule III, or at such other location as such Local Fronting Lender may direct, on or prior to 1:00 P.M., local time at the principal lending office of such Local Fronting Lender. Each such payment shall, to Base Rate the extent that it is owing on account of Local Loans under such Facility which are Dollar Loans, be paid in Dollars and, otherwise, shall be paid in the relevant Denomination Currency and second, to Eurocurrency Loans under such Facilityin immediately available funds. Each payment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans) Local Fronting Lender shall be accompanied by accrued interest give prompt notice to the date Administrative Agent of such payment on the amount paidamounts from time to time received by it hereunder.
(f) All payments (including prepayments) to be made by any Acquisition Borrower hereunder, whether on account of principal, interest, interest and fees or otherwise, relating to Fronted Acquisition Loans shall be made without setoff set-off or counterclaim and shall be made to the Acquisition Fronting Lender to which such amounts are owing at the office of such Acquisition Fronting Lender specified in Schedule III, or at such other location as such Acquisition Fronting Lender may direct, on or prior to 1:00 P.M., New York City timelocal time at the principal lending office of such Acquisition Fronting Lender. Each such payment shall, on the due date thereof to the Administrative Agent, for the extent that it is owing on account of Fronted Acquisition Loans which are denominated in Dollars, be paid in Dollars and, otherwise, shall be paid in the relevant Lenders, at the Payment Office, in Dollars Approved Acquisition Currency and in immediately available funds. Any payment made Each Acquisition Fronting Lender shall give prompt notice to the Administrative Agent of repayments of principal from time to time received by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. it hereunder.
(g) If any payment hereunder (other than payments on Eurodollar Loans or Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business DayDay and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment hereunder on a Eurodollar Loan or a Eurocurrency Loan becomes due and payable on a day other than a Business Working Day, the maturity thereof shall be extended to the next succeeding Business Working Day unless the result effect 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. 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.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified by telephone, confirmed in writing writing, by any Borrower Syndicated Lender prior to a borrowing date that such Lender will not make the date amount which would constitute its Commitment Percentage of any payment due the borrowing to be made by any Borrower hereunder that on such Borrower will not make such payment date available to the Administrative AgentAgent on such borrowing date, the Administrative Agent may assume that the Borrower is making such payment, and Syndicated Lender has made such amount available to the Administrative Agent may, but shall not be required toand, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of relevant Borrower a corresponding amount. If such payment amount is made available to the Administrative Agent on a date after such borrowing date, such Syndicated Lender shall pay to the Administrative Agent on demand an amount equal to the product of (i) the daily average Federal Funds Effective Rate during such period as determined by the Administrative Agent times (ii) such amount times (iii) a fraction of which the numerator is the number of days from and including such borrowing date to the date on which such amount becomes immediately available to the Administrative Agent and of which the denominator is 360. A certificate of the Administrative Agent submitted to any Syndicated Lender with respect to any amounts owing under this paragraph (g) shall be conclusive, in the absence of manifest error. If such amount is not in fact made available to the Administrative Agent by such Borrower Syndicated Lender within three Business Days after such due borrowing date, the Administrative Agent shall be entitled to recoverrecover such amount, 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 then applicable to Alternate Base Rate Loans hereunder, within eight Business Days after demand, from the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any relevant Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata PRO RATA according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 under principal amounts of the Term Loan Facility shall be allocated among Loans then held by the Term Loan Lenders holding such (except as otherwise provided in Section 2.16(d). The amount of each principal prepayment of the Term Loans pro rata shall be applied to reduce the then remaining installments of the Tranche A Term Loans and Tranche B Term Loans, as the case may be, PRO RATA based on upon the then remaining principal amount of such Term Loans held by such Term Loan Lendersthereof. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made PRO RATA according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment Notwithstanding anything to the contrary in Sections 2.9, 2.10 or 2.16, so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender may, at its option, decline up to 50% of the portion of any optional prepayment or mandatory prepayment applicable to the Tranche B Term Loans of such Lender; accordingly, with respect to the amount of any optional prepayment described in Section 2.9 or mandatory prepayment described in Section 2.10 that is allocated to Tranche B Term Loans (such amount, the "TRANCHE B PREPAYMENT AMOUNT"), at any time when Tranche A Term Loans remain outstanding, the Borrower will, (i) in the case of any optional prepayment which the Borrower wishes to make, not later than ten Business Days prior to the date on which the Borrower wishes to make such optional prepayment, and (ii) in the case of any mandatory prepayment required to be made pursuant to Section 2.10, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in paragraph Section 2.10(d), on the date specified in Section 2.10 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Loan Lender a notice (each, a "PREPAYMENT OPTION NOTICE") as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each a "PREPAYMENT DATE") that is five Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. On the Prepayment Date, (i) the Borrower shall pay to the Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of Reimbursement Obligations in which Tranche B Term Loan Lenders have accepted prepayment as described above (such Lenders, the "ACCEPTING LENDERS"), and such amount shall be applied to reduce the Tranche B Prepayment Amounts with respect to each Accepting Lender, (ii) the Borrower shall pay to the Administrative Agent an amount equal to 50% of the portion of the Tranche B Prepayment Amount not accepted by the Accepting Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans, and (C) the Borrower shall be entitled to retain the remaining 50% of the portion of the Tranche B Prepayment Amount not accepted by the Accepting Lenders. Each Term Loan Lender other than an Accepting Lender shall receive its portion of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Creditoptional prepayment or mandatory prepayment as set forth in Sections 2.9, 2.10 and 2.16.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.16(f) shall be conclusive in the absence of manifest error. If such Lender’s Xxxxxx's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata PRO RATA shares of a corresponding amount. If such payment is not made to the Administrative Agent by such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Axiohm Transaction Solutions Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans payment (including each prepayment) by the Company from the Term Loan Lenders hereunder, 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 Loan Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the Term Loans, pro rata based upon the respective then remaining principal amounts thereof. Amounts prepaid on account of the Term Loans may not be reborrowed. Each payment of principal and interest in respect of any optional prepayment of Revolving Credit Loans or Multicurrency Loans shall be made pro rata according to the amounts then due and owing to the respective Revolving Lender or Multicurrency Lender, as the case may be.
(b) Except as provided in subsection 2.19, each borrowing by the Borrower of Revolving Credit Loans from the Revolving Lenders hereunder shall be made pro rata according to the Funding Commitment Percentages of the Term Loan Revolving Lenders in effect on the date of such borrowing. Each payment by the Borrower on account of any facility fee hereunder and any reduction of the Revolving Credit Commitments of the Revolving Lenders shall be allocated by the Administrative Agent among the Revolving Lenders pro rata according to the Revolving Credit Commitment Percentages of the Lenders. Except as provided in subsection 2.19, each payment (including each prepayment) by the Borrower on account of principal on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then due and owing to the Revolving Lenders. Each payment by the Borrower of interest in respect of the Term Revolving Credit Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Revolving Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 Revolving Lenders. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunderhereunder in respect of amounts denominated in Dollars, whether on account of principal, interest, fees or otherwise, shall be made without setoff set off or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment OfficeAdministrative Agent’s office specified in subsection 13.2, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business Dayrelevant Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans or Multicurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Eurocurrency Eurodollar Loan or a Multicurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof of such payment shall be extended to the next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.
(c) Each borrowing of Multicurrency Loans by the Borrower shall be made, and any reduction of the Multicurrency Commitments shall be allocated by the Administrative Agent, pro rata according to the Multicurrency Commitment Percentages of the Multicurrency Lenders. In Each payment (including each prepayment) by the case of any extension of any payment Borrower on account of principal pursuant on Multicurrency Loans shall be allocated by the Administrative Agent pro rata according to the preceding two sentences, respective principal amounts of the Multicurrency Loans then due and owing by the Borrower to each Multicurrency Lender. Each payment by the Borrower of interest thereon in respect of the Multicurrency Loans shall be payable allocated by the Administrative Agent to the amounts of such obligations owing to the Multicurrency Lenders pro rata according to the respective amounts then due and owing to the Multicurrency Lenders. All payments (including prepayments) to be made by the Borrower on account of Multicurrency Loans hereunder, whether on account of principal, interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made at or before the payment time for the currency of such Multicurrency Loan from time to time specified by the Administrative Agent by notice to the Multicurrency Lenders and the Borrower, on the due date thereof to the Administrative Agent, for the account of the Multicurrency Lenders, at the payment office for the currency of such Multicurrency Loan from time to time specified by the Administrative Agent by notice to the Multicurrency Lenders and the Borrower, in the currency of such Multicurrency Loan and in immediately available funds. The Administrative Agent shall distribute such payments to the Multicurrency Lenders entitled to receive the same promptly upon receipt in like funds as received; provided that the Administrative Agent will provide funds in the then applicable rate during such extensionDollar Equivalent thereof (including an exchange fee and other normal and customary fees for providing this service as determined by the Administrative Agent in its sole discretion) to those Multicurrency Lenders that had funded the Revolving Credit Loans with the Dollar Equivalent as provided in subsection 2.17.
(gd) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate (in the case of a borrowing of Term Loans, Revolving Credit Loans or CAF Advances denominated in Dollars) and (ii) a rate determined by the Administrative Agent Agent’s reasonable estimate of its average daily cost of funds (in accordance with banking industry rules on interbank compensationthe case of a borrowing of Multicurrency Loans or CAF Advances denominated in a currency other than Dollars), in each case for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph subsection shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at equal to (i) the rate per annum applicable to Base Rate ABR Loans under hereunder (in the relevant Facilitycase of a borrowing of Term Loans, Revolving Credit Loans or CAF Advances or CAF Advances denominated in Dollars) and (ii) the Administrative Agent’s reasonable estimate of its average daily cost of funds plus the Applicable Margin applicable to Multicurrency Loans (in the case of a borrowing of Multicurrency Loans or CAF Advances denominated in a currency other than Dollars), on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing borrowing of Term Revolving Credit Loans (other than Swing Line Loans) by the Company Borrower or Blue Star Group, as the case may be, from the Term Loan Revolving Credit Lenders hereunder, shall be made pro rata according to the respective Term Loan Percentages of the Term Loan Lenders. Each payment of interest in respect of the Term Loans and each payment in respect of fees payable hereunder shall be applied to made, each payment by the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each payment Borrower 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. Amounts paid or prepaid any commitment fee in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, hereunder shall be allocated pro rata among by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (orAdministrative Agent, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts and any reduction of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders shall be allocated by the Administrative Agent, pro rata according to the relevant Revolving Credit Commitment Percentages of the Revolving Credit Lenders. Each borrowing of Multi-Draw Term Loans by the Borrower from the Multi-Draw Term Loan Lenders hereunder shall be made, each payment by the Borrower on account of any commitment fee in respect of the Multi-Draw Term Loan Commitments hereunder shall be allocated by the Administrative Agent, and any reduction of the Multi-Draw Term Loan Commitments of the Multi-Draw Term Loan Lenders shall be allocated by the Administrative Agent, pro rata according to the relevant Multi-Draw Term Loan Percentages of the Multi-Draw Term Loan Lenders. Each payment (including those Revolving Credit Lenders which shall not have made each prepayment) by the Borrower or Blue Star Group, as the case may be, on account of principal of and interest on any Revolving Credit Loans as part shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion payment (including each prepayment) by the Borrower on account of principal of and interest on any Borrowing Term Loans shall, subject to subsection 4.4(h), be made hereunder, allocated by the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage pro rata according to the respective outstanding principal amounts of such Borrowing to Term Loans then held by the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency Loans under such FacilityTerm Loan Lenders. 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.
(f) All payments (including prepayments) to be made by the Borrower or Blue Star Group, as the case may be, hereunder and under any Borrower hereunderNotes, whether on account of principal, interest, fees fees, Reimbursement Obligations or otherwise, shall be made without setoff or set-off, 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 LendersLoans or the L/C Participants, as the case may be, at the Payment OfficeAdministrative Agent's office specified in subsection 12.2, in Dollars and in immediately available funds. Any 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 made by any Borrower after is received prior to 1:00 P.M., New York City time, on any a Business Day, in like funds as received prior to the end of such Business Day and otherwise the Administrative Agent shall be deemed distribute such payment to have been such Lenders on the next following succeeding Business Day. If any payment hereunder (other than payments on Eurocurrency 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 Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof of such payment shall be extended to the next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gb) Unless the Administrative Agent shall have been notified in writing by any Revolving Credit Lender prior to a Borrowing borrowing that such Revolving Credit Lender will not make the amount that would constitute its share Revolving Credit Commitment Percentage 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 or Blue Star Group, as the case may be, 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, (x) the Administrative Agent shall notify the Borrower or Blue Star Group, as the case may be, 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 Revolving Credit Loans which are ABR Loans hereunder, on demand, from the Borrower or Blue Star Group, as the case may be, and (y) then the Borrower or Blue Star Group, as the case may be, may, without waiving any rights it may have against such Revolving Credit Lender, borrow a like amount on an unsecured basis from any commercial bank for a period ending on the date upon which such Revolving Credit 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 the Borrower or Blue Star Group, as the case may be, would be permitted to borrow such amount pursuant to subsection 2.1.
(c) Unless the Administrative Agent shall have been notified in writing by any Multi-Draw Term Loan Lender prior to a borrowing that such Multi-Draw Term Loan Lender will not make the amount that would constitute its Multi-Draw Term Loan Percentage of such borrowing available to the Administrative Agent, the Administrative Agent may assume that such Multi-Draw Term Loan 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 Multi-Draw Term Loan 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 Multi-Draw Term Loan Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Multi-Draw Term Loan Lender with respect to any amounts owing under this paragraph subsection shall be conclusive in the absence of manifest error. If such Multi-Draw Term Loan Lender’s share 's Multi-Draw Term Loan Percentage of such Borrowing borrowing is not made available to the Administrative Agent by such Multi-Draw Term Loan Lender within three Business Days after of such Borrowing Date, (x) the Administrative Agent shall notify the Borrower of the failure of such Multi-Draw Term Loan 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 Base Rate Multi-Draw Term Loans under the relevant Facilitywhich are ABR Loans hereunder, on demand, from the Borrower.
Borrower and (hy) Unless then the Administrative Agent shall Borrower may, without waiving any rights it may have been notified in writing by against such Multi-Draw Term Loan Lender, borrow a like amount on an unsecured basis from any Borrower prior to commercial bank for a period ending on the date of any payment due to be made by any Borrower hereunder that upon which such Borrower will not Multi-Draw Term Loan Lender does in fact make such payment to borrowing available, provided that at the Administrative Agent, the Administrative Agent may assume that time such borrowing is made and at all times while such amount is outstanding the Borrower is making would be permitted to borrow 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights clause (c) of the Administrative Agent or any Lender against any Borrowerfirst sentence of subsection 2.6.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Tranche B Term Loan Percentages or Pro Rata Share, as the case may be, of the Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan relevant Lenders.
(b) Each payment on account of principal (including each prepayment) of the Tranche B Term Loans outstanding under the Term Loan Facility shall be allocated among the Tranche B Term Loan Lenders holding such Tranche B Term Loans pro rata based on the principal amount of such Tranche B Term Loans held by such Tranche B Term Loan Lenders, and shall be applied to the installments of such Tranche B Term Loans pro rata based on the remaining outstanding principal amount of such installments, except with respect to any payments made pursuant to Section 5.20. Amounts paid or prepaid in respect on account of the Tranche B Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of Loans then held by the Lenders, except with respect to any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)payments made pursuant to Section 5.20. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(ed) The application Notwithstanding anything to the contrary in Sections 5.5 or 5.11, so long as any of the Revolving Facilities Commitments are in effect, each Tranche B Term Loan Lender may, at its option, decline all or any portion of any mandatory payment applicable to the Tranche B Term Loan of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 5.5 that is allocated to Tranche B Term Loans under (such amount, the “Tranche B Prepayment Amount”), at any Facility time when any of the Revolving Facilities Commitments are in effect, Parent will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Section 5.5(d), on the date specified in Section 5.5 for such prepayment, give the Administrative Agent telephonic notice (including optional promptly confirmed in writing) requesting that the Administrative Agent prepare and mandatory prepaymentsprovide to each Tranche B Term Loan Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from Holdings, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be made firstin the form of Exhibit H, and shall include an offer by Parent to Base Rate Loans under such Facility and second, cause the Borrower to Eurocurrency Loans under such Facility. Each payment prepay on the date (each a “Prepayment Date”) that is 2 Business Days after the date of the Prepayment Option Notice, the Tranche B Term Loan of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loan. On the Prepayment Date, (i) the Borrower shall pay to the Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding Tranche B Term Loans in respect of which Tranche B Term Loan Lenders have accepted prepayment as described above (except in such Lenders, the case “Accepting Lenders”), and such amount shall be applied to reduce the Tranche B Prepayment Amounts, as applicable, with respect to each Accepting Lender, (ii) the Borrower shall pay to the Administrative Agent an amount equal to 50% of the portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Loan Lenders (or, if the aggregate outstanding principal amount of Revolving Credit Loans that are Base Rate Loans) and Swing Line Loans is less than such portion, such lesser amount), and the outstanding Revolving Credit Loans and Swing Line Loans shall be accompanied automatically prepaid by accrued interest such amount, pro rata according to the date respective Revolving Credit of the relevant Lender (but without any corresponding permanent reduction in any of the Revolving Facilities Commitments), and (iii) the Borrower shall use the remaining portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Loan Lenders to prepay the loans under the Second Lien Credit Agreement to the extent required thereby (and may retain any of such payment on remaining portion not required to be used to prepay such loans); provided, however, that if after giving pro forma effect to the amount paidtransactions described in clauses (ii) and (iii) the First Lien Leverage Ratio would be greater than 3.00 to 1.00, the Tranche B Term Loan Lenders shall not have the option to decline such mandatory prepayment and all such Net Proceeds shall be applied toward the Tranche B Term Loans.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.12:00 Noon, New York City time, on any Business Day shall be deemed to have been made on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders entitled thereto promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent Rate, in accordance with banking industry rules on interbank compensation, each case for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount (but only to the extent theretofore made available by it to the Borrower) with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, Facility on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: First Lien Credit Agreement (Six Flags Entertainment Corp)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans and Loans, each payment in respect of fees payable hereunder hereunder, and each payment in respect of Reimbursement Obligations, shall be applied allocated among the Facilities in respect of which such amounts are owing pro rata according to the amounts then due and owing under the respective Facilities.
(b) Except as otherwise provided in subsection 2.16(d), each payment (including each prepayment) by the Borrower on account of such obligations owing to principal of and interest on the Term Loan Lenders Loans shall be made pro rata according to the respective outstanding principal amounts then due and owing to the applicable Term Loan Lenders.
(b) Each payment on account of principal of the Term Loans outstanding under then held by the Term Loan Facility Lenders, and the amount of each principal prepayment of the Term Loans shall be allocated among applied to reduce the Term Loan Lenders holding such then remaining installments of the Tranche EA Term Loans and the Tranche EB Term Loans, as the case may be, pro rata based on upon the then remaining principal amount of such Term Loans held by such Term Loan Lendersthereof. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders Lenders.
(d) Notwithstanding anything to the contrary in accordance subsections 2.10(a), (b), (c) or (d) or subsection 2.16, so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender may, at its option, decline all or any portion of any optional prepayment or mandatory prepayment applicable to the Tranche B Term Loans of such Lender (other than any mandatory prepayment made pursuant to subsection 2.10(e)); accordingly, with their respective Revolving Credit Commitments respect to the amount of any such optional prepayment or mandatory prepayment that is allocated to Tranche B Term Loans (orsuch amounts, if the "Tranche B Prepayment Amount"), at any time when Tranche A Term Loans remain outstanding, the Borrower will, (i) in the case of any optional prepayment which the Borrower wishes to make, not later than 10 days prior to the date on which the Borrower wishes to make such Revolving Credit Commitments shall have expired or been terminatedoptional prepayment, and (ii) in the case of any such mandatory prepayment required to be made pursuant to subsection 2.10, in accordance with lieu of applying such amount to the respective principal amounts prepayment of their outstanding Standby Loans)Tranche B Term Loans on the date specified in subsection 2.10 for such prepayment, give the General Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the General Administrative Agent prepare and provide to each Tranche B Term Loan Lender a notice (each, a "Prepayment Option Notice") as described below. Each payment of principal of any Competitive Borrowing As promptly as practicable after receiving such notice from the Borrower, the General Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be allocated pro rata among in the Revolving Credit Lenders participating form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each a "Prepayment Date") that is 5 days after the date of the Prepayment Option Notice, the Tranche B Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Borrowing in accordance with Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. On the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining Prepayment Date, (i) the Borrower shall pay to the General Administrative Agent the aggregate available Revolving Credit Commitments amount necessary to prepay that portion of the Revolving Credit outstanding Tranche B Term Loans in respect of which Tranche B Term Loan Lenders at any time have not declined to accept prepayment as described above (such Lenders, the "Accepting Lenders"), and such amount shall be applied to reduce the Tranche B Repayment Amounts with respect to each Accepting Lender and (ii) the available Revolving Credit Commitment Borrower shall pay to the General Administrative Agent an amount equal to the portion of each Revolving Credit Lenderthe Tranche B Prepayment Amount not accepted by the Accepting Lenders, each outstanding Competitive Borrowing and such amount shall be deemed applied to have utilized the Revolving Credit Commitments prepayment of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of CreditTranche A Term Loans.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M.12:00 Noon, New York City Chicago, Illinois time, on the due date thereof to the General Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The General Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the General Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the General Administrative Agent, the General Administrative Agent may assume that such Lender is making such amount available to the General Administrative Agent, and the General Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the General Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the General Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the General Administrative Agent. A certificate of the General Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the General Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the General Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum equal to the interest rate applicable for such period to Base Rate Loans under the relevant Facilitysuch borrowing, on demand, from the Borrower.
(hg) Unless the General Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such the Borrower will not make such payment to the General Administrative Agent, the General Administrative Agent may assume that the Borrower is making such payment, and the General Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the General Administrative Agent by such the Borrower within three Business Days after of such due required date, the General Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the General Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company a Borrower from the Term Loan Lenders hereunder, each payment by a Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche D Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each Subject to Section 2.18(c), each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 payment on account of principal (including each prepayment) of the Tranche D Term Loans outstanding under the Tranche D Term Loan Facility shall be allocated among the Tranche D Term Loan Lenders holding such Tranche D Term Loans pro rata based on the principal amount of such Tranche D Term Loans held by such Tranche D Term Loan Lenders, and each prepayment shall be applied to the installments of such Tranche D Term Loans pro rata based on the remaining outstanding principal amount of such installments. Amounts paid or prepaid in respect on account of the Tranche D Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by a Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of connection with any Letter of Credit shall be made to the Issuing Lender.
(d) Notwithstanding anything to the contrary in Section 2.12 or this Section 2.18, each Issuing Tranche D Term Loan Lender may, at its option, decline all or any portion of any mandatory payment applicable to the Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.12 that issued is allocated to a Term Loan (such Letter amounts, the "Term Loan Prepayment Amount"), the Borrowers will, in lieu of Creditapplying such amount to the prepayment of applicable Term Loans, as provided in Sections 2.12(e) and 2.18(b), on or up to 10 Business Days prior to the date specified in Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche D Term Loan Lender entitled to receive a mandatory prepayment a Prepayment Option Notice as described below and, on the date specified in Section 2.12 for such prepayment, deposit such amount in a cash collateral account opened by the Administrative Agent pending application of such amount in accordance with this Section 2.18(d). As promptly as practicable after receiving such notice from the Borrowers, the Administrative Agent will send to each applicable Tranche D Term Loan Lender a Prepayment Option Notice, which shall include an offer by the Borrowers to prepay on the date (each a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Term Loans. On the Prepayment Date, (i) the Administrative Agent shall apply from the amount deposited in the cash collateral account pursuant to this Section 2.18(d) the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which Tranche D Term Loan Lenders have accepted prepayment as described above, and such amount shall be applied to reduce the Term Loan Prepayment Amounts with respect to each accepting Lender, and (ii) the Administrative Agent shall pay to the applicable Borrower from the amount deposited in such cash collateral account the remaining portion of the Term Loan Prepayment Amount not accepted by the Tranche D Term Loan Lenders; provided that if the amount held in such cash collateral account is less than the total amount required to be paid pursuant to clause (i) of this sentence, the Borrowers shall pay to the Administrative Agent, on the Prepayment Date, in immediately available funds an amount equal to the difference between such amounts. The Borrowers hereby grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing security interest in all amounts at any time on deposit in such cash collateral account to secure all Obligations from time to time outstanding.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower the Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the BorrowerBorrowers.
(hg) Unless Subject to Section 2.18(d), unless the Administrative Agent shall have been notified in writing by any Borrower the Borrowers prior to the date of any payment due to be being made by any Borrower hereunder that such Borrower the Borrowers will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is Borrowers are making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by such Borrower the Borrowers within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrowerthe Borrowers.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages, Tranche C Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan 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 Loan Lenders pro rata PRO RATA according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Subject to Section 2.18(d), each mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated among the Term Loan Facilities PRO RATA according to the respective outstanding principal amounts of Term Loans under such Facilities. Subject to Section 2.18(d), each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities PRO RATA according to the respective outstanding principal amounts of Term Loans under such Facilities; PROVIDED, that the optional prepayment to be made with the proceeds of the Tranche C Term Loans shall be allocated, subject to Section 2.18(d), between the Tranche A Term Loan Facility and the Tranche B Term Loan Facility PRO RATA according to the respective outstanding principal amounts of Term Loans under such Facilities. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the any Term Loan Facility shall be allocated among the Term Loan Lenders holding such Term Loans pro rata PRO RATA based on the principal amount of such Term Loans held by such Term Loan Lenders, and shall be applied (i) in the case of mandatory prepayments pursuant to Section 2.12(b), to the installments thereof PRO RATA based on the remaining outstanding principal amount of such installments, and (ii) in the case of all other prepayments, FIRST, to the next scheduled installment thereof to be due after the date of such prepayment, and, SECOND, to the remaining installments PRO RATA based on the remaining outstanding principal amount of such installments. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment Revolving Credit Loans of the Commitment Fees, each reduction Borrower shall be made PRO RATA according to the respective outstanding principal amounts of the Revolving Credit Commitments and each conversion Loans of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Borrower then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the relevant Issuing Lender.
(d) Notwithstanding anything to the contrary in Sections 2.11, 2.12 or 2.18(b), so long as any Tranche A Term Loans are outstanding, each Issuing Tranche B Term Loan Lender and Tranche C 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 or Tranche C 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 or Tranche C 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 Borrower will:
(i) in the case of any optional prepayment of the Tranche B Term Loans or Tranche C Term Loans which the Borrower wishes to make, 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 and Tranche C Term Loan Lender a notice (each, a "PREPAYMENT OPTION NOTICE") as described below; and
(ii) in the case of any mandatory prepayment required to be made pursuant to Section 2.12, on the date specified in Section 2.12 for such prepayment, (A) 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 and Tranche C Term Loan Lender a Prepayment Option Notice as described below and (B) deposit with the Administrative Agent the Mandatory Prepayment Amount. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender and Tranche C Term Loan Lender a Prepayment Option Notice, which shall be substantially in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the Prepayment Date the Tranche B Term Loans or Tranche C Term Loans of such Lender by an amount equal to the portion of the Optional Prepayment Amount or Mandatory Prepayment Amount, as the case may be, indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans or Tranche C Term Loans. The "PREPAYMENT DATE" in respect of any Prepayment Option Notice shall be the date which is (i) in the case of a Prepayment Option Notice relating to an optional prepayment, the later of (A) three Business Days after the date of such Prepayment Option Notice and (B) the date on which the Borrower has advised the Administrative Agent that it wishes to make such optional prepayment and (ii) in the case of a Prepayment Option Notice relating to a mandatory prepayment, the date which is three Business Days after the date of such Prepayment Option Notice. On the Prepayment Date:
(i) in the case of any optional prepayment, the Borrower shall pay to the Administrative Agent the Optional Prepayment Amount, and the Administrative Agent shall (A) apply the Optional Prepayment toward prepayment of the outstanding Tranche B Term Loans or Tranche C Term Loans in respect of which Lenders have accepted optional prepayment as described above and (B) apply the remaining portion of the Optional Prepayment Amount not accepted by the Tranche B Term Loan Lenders or Tranche C Term Loan Lenders toward prepayment of the Tranche A Term Loans; and
(ii) in the case of any mandatory prepayment, the Administrative Agent shall (A) apply the Mandatory Prepayment Amount toward prepayment of the outstanding Tranche B Term Loans or Tranche C Term Loans in respect of which Lenders have accepted mandatory prepayment as described above and (B) apply the remaining portion of the Mandatory Prepayment Amount not accepted by the Tranche B Term Loan Lenders or Tranche C Term Loan Lenders toward prepayment of the Tranche A Term Loans. The procedures described above in this paragraph (d) shall not be applicable in the case of a prepayment in full of all Term Loans. Notwithstanding any of the foregoing, with respect to the optional prepayment of the Term Loans to be made by the Borrower on the Restatement Effective Date, each Tranche B Term Loan Lender that issued delivers a Lender Addendum as provided in Section 5.1(a) hereby declines 100% of the portion of such Letter optional prepayment applicable to such Lender's Tranche B Term Loans, and each such Lender hereby waives the notice requirements of Creditthis Section 2.18(d).
(e) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made firstmade, FIRST, to Base Rate Loans under such Facility and secondand, SECOND, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.12:00 Noon, New York City time, on any Business Day shall be deemed to have been made on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (White Mountains Insurance Group LTD)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company any Borrower from the Term Loan Lenders hereunder, each payment by any Borrower on account of any commitment fee and any reduction of the Term Commitments or Revolving Commitments of the Lenders shall be made pro rata according to the respective US$ Term Loan Percentages, Euro Term Fronting Percentages, US$ Revolving Percentages or Multicurrency Revolving Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment Any reduction of interest in respect of the Term Loans and each payment in respect of fees payable hereunder Commitments shall be applied ratably to the amounts US$ Term Commitments and the Euro Term Fronting Commitments, and any reduction of such obligations owing the Revolving Commitments shall be applied ratably to the Term Loan Lenders pro rata according to US$ Revolving Commitments and the respective amounts then due and owing to the applicable Term Loan LendersMulticurrency Revolving Commitments.
(b) Each payment by any Borrower on account of principal of the Term Loans (other than pursuant to Section 2.3) shall be made pro rata according to the respective outstanding under principal amounts of the Term Loan Loans then held by the Term Lenders. Each payment by any Borrower on account of principal of the Term Loans under a particular Facility pursuant to Section 2.3 and of interest on the Term Loans under a particular Facility shall be allocated among made pro rata according to the respective outstanding principal amounts of the relevant Term Loans then held by the Term Loan Lenders holding under such Facility. The amount of each principal prepayment of the Term Loans shall be applied to reduce the then remaining installments of the US$ Term Loans, Euro Term Loans and Incremental Term Loans, as the case may be, pro rata based on upon the respective then remaining principal amount of such Term Loans held by such Term Loan Lendersamounts thereof. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each Each payment or prepayment by any Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Loans under a particular Facility shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if under such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountFacility.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Funding Office, in Dollars or the relevant Alternative Currency and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(ge) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationcompensation (or, in the case of Dollar-denominated Loans, if greater, the Federal Funds Effective Rate), for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate ABR Loans (or, in the case of Alternative Currency Loans, the relevant rate applicable thereto) under the relevant Facility, on demand, from the relevant Borrower.
(hf) Unless the Administrative Agent shall have been notified in writing by any the relevant Borrower prior to the date of any payment due to be made by any the relevant Borrower hereunder that such the relevant Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by such 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 the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate (or, in the case of Alternative Currency Loans, the Cost of Funds Rate). Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrowerthe Borrowers.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing borrowing of Term --------------------------------------------- US$ Revolving Credit Loans, Supplemental Revolving Credit Loans, Additional US$ Revolving Credit Loans by the Company from the Term Loan Lenders hereunder, or Multicurrency Revolving Credit Loans shall be made pro rata according to the respective US$ Revolving Credit Percentages, Supplemental Revolving Credit Percentages, Additional US$ Revolving Credit Percentages or Multicurrency Revolving Credit Percentages, as the case may be, of the relevant Lenders in effect on the date of such borrowing. Each payment by the Company on account of any facility fee hereunder shall be allocated by the Administrative Agent among the Lenders in accordance with the respective amounts which such Lenders are entitled to receive pursuant to Section 7.5. Any reduction of the US$ Revolving Credit Commitments, Additional US$ Revolving Credit Commitments, Multicurrency Revolving Credit Commitments or Supplemental Revolving Credit Commitments shall be allocated by the Administrative Agent among the Lenders pro rata according to the US$ Revolving Credit Percentages, the Additional US$ Revolving Credit Percentages, the Multicurrency Revolving Credit Percentages or the Supplemental Revolving Credit Percentages, as the case may be, of the relevant Lenders. Each payment (including each prepayment) on account of principal of and interest on the US$ Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the US$ Revolving Credit Loans then held by the US$ Revolving Credit Lenders. Each payment (including each prepayment) on account of principal of and interest on the Supplemental Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Supplemental Revolving Credit Loans then held by the Supplemental Revolving Credit Lenders. Each payment (including each prepayment) by a Borrower on account of principal of and interest on Additional US$ Revolving Credit Loans shall be allocated by the Administrative Agent pro rata according to the respective principal amounts of the Additional US$ Revolving Credit Loans then due and owing by such Borrower to each Additional US$ Revolving Credit Lender. Each payment (including each prepayment) by a Borrower on account of principal of and interest on Multicurrency Revolving Credit Loans shall be allocated by the Administrative Agent pro rata according to the respective principal amounts of the Multicurrency Revolving Credit Loans then due and owing by such Borrower to each Multicurrency Revolving Credit Lender.
(b) Each borrowing by the Company of Tranche C Term Loans hereunder shall be made pro rata according to the respective Tranche C Term Loan --- ---- Percentages of the relevant Lenders. Each optional prepayment by the Company on account of principal of and interest on the Term Loans of any Class shall be made pro rata according to the respective outstanding principal amounts of the --- ---- Term Loans of such Class then held by the Term Loan Lenders. Each payment of interest prepayment in respect of the Tranche A Term Loans and each payment in respect of fees payable hereunder the Tranche B Term Loans shall be applied to the amounts of such obligations owing to the Term Loan Lenders made pro rata according to the respective aggregate outstanding principal amounts of --- ---- such Term Loans of such two Classes then due and owing to held by the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower hereunderthe Company hereunder in respect of amounts denominated in Dollars, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, in the case of US$ Revolving Credit Loans, Supplemental Revolving Credit Loans or Additional US$ Revolving Credit Loans, and 11:00 A.M., London time, in the case of Multicurrency Revolving Credit Loans, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment OfficeAdministrative Agent's office specified in Section 15.2, in Dollars and in immediately available funds. Any payment The Administrative Agent shall distribute such payments to the Lenders entitled to receive the same promptly upon receipt in like funds as received.
(d) All payments (including prepayments) to be made by a Borrower on account of Multicurrency Revolving Credit Loans denominated in any Borrower after 1:00 P.M.Available Foreign Currency, New York City whether on account of principal, interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made prior to 12:00 Noon, London time (or, in the case of payments in euro units, prior to 12:00 Noon, Frankfurt time), on the due date thereof to the Administrative Agent, for the account of the Multicurrency Revolving Credit Lenders, at the payment office for the currency of such Multicurrency Revolving Credit Loans specified from time to time by the Administrative Agent by notice to the Borrowers, in the currency of such Multicurrency Revolving Credit Loans and in immediately available funds. The Administrative Agent shall distribute such payments to the Multicurrency Revolving Credit Lenders entitled to receive the same promptly upon receipt. In relation to the payment of any Business Day amount of euro, such amount shall be deemed made available to have been on the next following Business Day. Administrative Agent in immediately available, freely transferable, cleared funds to such account with such bank in Frankfurt am Main, Germany (or such other principal financial center in such Participating Member State as the Administrative Agent may from time to time nominate for this purpose) as the Administrative Agent shall from time to time nominate for this purpose.
(e) If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans or the Multicurrency Revolving Credit 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 Eurocurrency Eurodollar Loan or a Multicurrency Revolving Credit Loan becomes due and payable on a day other than a Business Day, the maturity thereof of such payment shall be extended to the next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gf) Unless A payment shall be deemed to have been made by the Administrative Agent on the date on which it is required to be made under this Agreement if the Administrative Agent has, on or before that date, taken all relevant steps to make that payment. With respect to the payment of any amount denominated in euro, the Administrative Agent shall not be liable to any Borrower or any of the Lenders in any way whatsoever for any delay, or the consequences of any delay, in the crediting to any account of any amount required by this Agreement to be paid by the Administrative Agent if the Administrative Agent shall have been notified taken all relevant steps to achieve, on the date required by this Agreement, the payment of such amount in writing by immediately available, freely transferable, cleared funds in the euro unit to the account with the bank in the principal financial center in the Participating Member State which the relevant Borrower or, as the case may be, any Lender prior shall have specified for such purpose. In this paragraph (f), "all relevant steps" means all such steps as may be prescribed from time to a Borrowing that such Lender will not make time by the amount that would constitute its share regulations or operating procedures of such Borrowing available to the Administrative Agent, clearing or settlement system as the Administrative Agent may assume that such Lender is making such amount available from time to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, determine for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate purpose of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence clearing or settling payments of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrowereuro.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing reduction of Term Loans the Revolving Commitments of the Revolving Lenders shall be made pro rata according to the amounts of such Revolving Lenders’ Commitment Percentages (provided, that, notwithstanding anything to the contrary contained herein or any Loan Document, the Revolving-1 Commitments shall terminate on the Revolving-1 Maturity Date without a corresponding reduction or termination of the Revolving-2 Commitments). Each payment (including each prepayment) by the Company from the Term Loan Lenders hereunder, Borrower on account of principal of and interest on Loans which are ABR Loans shall be made pro rata according to the respective Term Loan Percentages outstanding principal amounts of such ABR Loans then held by the Lenders of the Term applicable Class (provided, that, notwithstanding anything to the contrary contained herein or any Loan LendersDocument, any outstanding Revolving-1 Loans shall be paid in full on the Revolving-1 Maturity Date without a corresponding payment of the Revolving-2 Loans and any outstanding Initial Term-1 Loans shall be paid in full on the Initial Term-1 Maturity Date without a corresponding payment of the Initial Term-2 Loans). Each payment (including each prepayment) by the Borrower on account of principal of and interest in respect of on Loans which are Eurodollar Loans designated by the Term Loans and each payment in respect of fees payable hereunder shall Borrower to be applied to the amounts of such obligations owing to the Term Loan Lenders a particular Eurodollar Borrowing shall be made pro rata according to the respective outstanding principal amounts of such Loans then due and owing held by the Lenders of the applicable Class (provided, that, notwithstanding anything to the applicable Term contrary contained herein or any Loan Lenders.
(b) Document, any outstanding Revolving-1 Loans shall be paid in full on the Revolving-1 Maturity Date without a corresponding payment of the Revolving-2 Loans and any outstanding Initial Term-1 Loans shall be paid in full on the Initial Term-1 Maturity Date without a corresponding payment of the Initial Term-2 Loans). Each payment (including each prepayment) by the Borrower on account of principal of the Term and interest on Swingline Loans outstanding under the Term Loan Facility shall be allocated among the Term Loan Lenders holding such Term Loans made pro rata based on the principal amount of such Term Loans held by such Term Loan Lenders. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans according to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders Swingline Loans or participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lenderinterests therein, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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 may be, then held by accrued interest to the date of such payment on the amount paid.
(f) relevant Lenders. All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, p.m. on the due date thereof to the Administrative Agent, for the account of the relevant LendersLenders of the applicable Class, at the Payment Office, Administrative Agent’s Office specified in Section 9.01 in Dollars and in immediately available funds. Any payment made by any Borrower received after 1:00 P.M.such time but before 2:00 p.m. on such day shall be deemed a payment on such date for the purposes of Section 7.01, New York City time, on any Business Day but for all other purposes shall be deemed to have been made on the next following succeeding Business Day. Any payment received after 2:00 p.m. shall be deemed to have been made on the next succeeding Business Day for all purposes. The Administrative Agent shall distribute such payments to the Lenders entitled thereto in the same currency as received and promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, 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 Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day (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.
(gb) Unless Subject to Section 2.12, unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.13(b) shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate ABR Revolving Loans under the relevant Facilityhereunder, on demand, from the Borrower, but without prejudice to any right or claim that the Borrower may have against such Lender.
(hc) Unless the Administrative Agent shall have been notified in writing Subject to Section 7.05, if at any time insufficient funds are received by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such Borrower within three Business Days after such due date, the Administrative Agent funds 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 any Borrower.
applied (i) This Section 2.18 shall not be construed to apply to any first, towards payment made by any Borrower pursuant to of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the express provisions amounts of this Agreementinterest and fees then due to such parties, including differing payments and (ii) second, towards payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24such parties.
(jd) Upon receipt Notwithstanding the foregoing clauses, if there exists a Defaulting Lender each payment by the Administrative Agent of payments on behalf of Lenders, the Administrative Agent Borrower to such Defaulting Lender hereunder shall promptly distribute such payments to the Lender or Lenders entitled thereto, be applied in like funds as received by the Administrative Agentaccordance with Section 2.23(b).
Appears in 1 contract
Samples: Amendment Agreement (Consolidated Communications Holdings, Inc.)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower or any Foreign Borrower from the Term Loan Lenders hereunder, each payment by the Borrower or any Foreign Borrower on account of any Commitment fee or Letters of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages, Dollar Revolving Credit Percentages, Multicurrency Revolving Credit Percentages or German Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment (other than any prepayments) 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 Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.12 to be applied to Term Loans (excluding, so long as no Default or Event of Default exists and is continuing, mandatory prepayments required by Section 2.12(a)) shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans and, provided that no Default or Event of Default exists and is continuing, each mandatory prepayment required by Section 2.12(a) shall be allocated among the Term Loan Facilities in accordance with the Borrower’s instructions. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the 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 in the case of mandatory prepayments and in direct order of maturity in the case of voluntary prepayments. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment Dollar Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Commitment Fees, each reduction Dollar Revolving Credit Loans then held by the Dollar Revolving Credit Lenders; provided however that it shall not constitute a violation of this Section 2.18(c) if the Borrower pays (i) the Applicable Margin applicable to Non-Extending Dollar Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the to Non-Extending Dollar Revolving Credit Lenders in accordance with their respective Non-Extending Dollar Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time Percentages and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed Applicable Margin applicable to have utilized the Extending Dollar Revolving Credit Commitments of the to Extending Dollar Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective their Extending Dollar Revolving Credit Commitments; provided, however, that for purposes Percentages. Each payment in respect of determining payments Dollar Reimbursement Obligations in respect of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing any Dollar Letter of Credit shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit Issuing Lender that issued such Dollar Letters of any applicable Alternative Currency) amountCredit.
(d) Each payment (including each prepayment) by the Borrower or any Foreign Borrower on account of principal of and interest on the Multicurrency Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Multicurrency Revolving Credit Loans then held by the Multicurrency Revolving Credit Lenders; provided however that, it shall not constitute a violation of this Section 2.18(d) if the Borrower or any Foreign Borrower pays (i) the Applicable Margin applicable to Non-Extending Multicurrency Revolving Credit Commitments to Non-Extending Multicurrency Revolving Credit Lenders in accordance with their Non-Extending Multicurrency Revolving Credit Percentages and (ii) the Applicable Margin applicable to Extending Multicurrency Revolving Credit Commitments to Extending Multicurrency Revolving Credit Lenders in accordance with their Extending Multicurrency Revolving Credit Percentages. Each payment in respect of Reimbursement Obligations in respect of any Multicurrency Letter of Credit shall be made to each the Multicurrency Issuing Lender that issued such Letter Multicurrency Letters of Credit.
(e) Each payment (including each prepayment) by the German Borrower on account of principal of and interest on the German Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the German Revolving Credit Loans then held by the German Revolving Credit Lenders; provided however that, it shall not constitute a violation of this Section 2.18(e) if the German Borrower pays (i) the Applicable Margin applicable to Non-Extending German Revolving Credit Commitments to Non-Extending German Revolving Credit Lenders in accordance with their Non-Extending German Revolving Credit Percentages and (ii) the Applicable Margin applicable to Extending German Revolving Credit Commitments to Extending German Revolving Credit Lenders in accordance with their Extending German Revolving Credit Percentages. Each payment in respect of Reimbursement Obligations in respect of any German Letter of Credit shall be made to the German Issuing Lender that issued such German Letters of Credit.
(f) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency Loans under such Facility. Each payment of the Loans (except in the case of Dollar 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.
(fg) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M.(i) in the case of any Loan denominated in Dollars, 12:00 noon, New York City time and (ii) in the case of any Loan denominated in any currency other than Dollars, 12:00 noon, London, England time, in each case, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars the currency of the relevant loan and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.(i) in the case of any Loan denominated in Dollars, 12:00 noon, New York City time and (ii) in the case of any Loan denominated in a currency other than Dollars, 12:00 noon, London, England time, in each case, on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received.
(h) All payments (including prepayments) to be made by any Foreign Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made at the time and manner specified in the Administrative Schedule, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in the currency of the relevant loan and in immediately available funds. Any payment made by any Foreign Borrower after such time on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received.
(i) All payments (including prepayments) to be made by the German Borrower hereunder with respect to the German Revolving Credit Facility, whether on account of principal, interest, fees or otherwise, shall be made prior to 12:00 Noon, Frankfurt time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the German Payment Office, in Euros and in immediately available funds. Any payment made by the German Borrower after 12:00 Noon, Frankfurt time, on any Business Day shall be deemed to have been made on the next following Business Day. The Administrative Agent shall distribute such payments to the German Revolving Credit Lenders promptly upon receipt in like funds as received.
(j) If any payment hereunder under clauses (g), (h), or (i) above (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gk) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower or any Foreign 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 Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, for each day from and including the date such amount is made available to the Borrower or any Foreign Borrower but excluding the date of payment to the Administrative Agent, at (i) in the case of a rate equal to Revolving Credit Loan denominated in Dollars, the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry custom and rules on interbank compensation or (ii) in the case of a Revolving Credit Loan denominated in Euros or any other Available Foreign Currency, a rate determined by the Administrative Agent in accordance with banking industry custom and rules on interbank compensation, for the period until . If such Lender makes pays such amount immediately available to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such borrowing of Loans. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three within, (i) in the case of any Loan denominated in Dollars, one Business Days Day and (ii) in the case of any Loan denominated in Euros or any other Available Foreign Currency, two Business Day, in each case, 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 Base Rate Swing Line Loans under the relevant Facility, on demand, from the Borrower or such Foreign Borrower, as applicable.
(hl) Unless the Administrative Agent shall have been notified in writing by the Borrower or any Borrower Foreign Borrower, as applicable, prior to the date of any payment due to be made by the Borrower or any Borrower Foreign Borrower, as applicable, hereunder that the Borrower or such Borrower Foreign Borrower, as applicable, will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower or such Foreign 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 such Borrower Foreign 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 to, (i) in the case of any Loan denominated in Dollars, the greater of the daily average Federal Funds Effective RateRate and a rate determined by the Administrative Agent in accordance with banking industry custom and rules on interbank compensation and (ii) in the case of any Loan denominated in Euros or any other Available Foreign Currency, a rate determined by the Administrative Agent in accordance with banking industry custom and rules on interbank compensation. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against the Borrower or any Foreign Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing borrowing by the Borrower from the Lenders hereunder (other than with respect to Foreign Currency Loans), each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Percentages, Tranche B Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders. Each payment by the Borrower of the Foreign Currency Participation Fee with respect to any Foreign Currency Loan made in a particular Foreign Currency shall be made pro rata among the Revolving Lenders that are Foreign Currency Loan Participants in respect of Foreign Currency Loans made in such Foreign Currency in accordance with their respective Foreign Currency Participating Interests.
(b) Each payment (including each prepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Company from Term Lenders. The amount of each principal prepayment of the Term Loan Lenders hereunderLoans pursuant to Section 2.12 shall be applied, within each Term Facility, (i) first to scheduled installments of the Tranche A Term Loans and the Tranche B Term Loans, as the case may be, occurring within the next 12 months in direct order of maturity and (ii) thereafter, to reduce the then remaining installments of the Tranche A Term Loans and Tranche B Term Loans, as the case may be, pro rata based upon the respective then remaining principal amounts thereof. Each prepayment pursuant to Section 2.11 by the Borrower on account of principal of and interest on the Tranche A Term Loans or the Tranche B Term Loans, as the case may be, shall be made pro rata according to the respective Term Loan Percentages principal amounts of the Tranche A Term Loan Loans or Tranche B Term Loans, as the case may be, then held by the Tranche A Term Lenders or the Tranche B Term Lenders, as the case may be. Each payment of interest in respect 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 each payment in respect of fees payable hereunder interest on the Revolving Loans (other than Foreign Currency Loans) shall be applied to the amounts of such obligations owing to the Term Loan Lenders made pro rata according to the respective outstanding principal amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment borrowing by the Borrower of Foreign Currency Loans in respect of Reimbursement Obligations in respect of any Letter of Credit particular Foreign Currency shall be made among the Foreign Currency Lenders with respect to such Foreign Currency, with the Foreign Currency Loan of each Issuing such Foreign Currency Lender that issued (other than the Fronting Lender) to be in an amount equal to its Revolving Percentage of the applicable borrowing and the Foreign Currency Loan of the Fronting Lender to be in an amount equal to the aggregate amount of such Letter borrowing less the amount of Creditthe Foreign Currency Loans being made by other Foreign Currency Lenders and comprising part of such borrowing. Each payment (including each prepayment) by the Borrower on account of principal of and interest on 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 Foreign Currency Lenders.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on, or the fronting fee with respect to the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment Other than as set forth in Section 2.10(d), all payments (including prepayments) to be made by any the Borrower after 1:00 P.M.hereunder on account of principal or interest on, New York City time, on any Business Day or the fronting fee with respect to the Foreign Currency Loans shall be deemed to have been on made in the next following Business Day. If any payment hereunder (other than payments on Eurocurrency Loans) becomes due relevant Foreign Currency, without setoff and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due counterclaim and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant due date thereof to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Foreign Currency Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate account of the Administrative Agent submitted to any Lender applicable Foreign Currency Lenders (or, with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing Datefronting fee, the Administrative Agent shall also be entitled to recover such amount with interest thereon Fronting Lender), at the rate per annum applicable to Base Rate Loans under the relevant Facilityoffice, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower and prior to the date of any time for payment due to be made by any Borrower hereunder that such Borrower will not make such payment to for the relevant currency, set forth on 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 amountSchedule. 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the The Administrative Agent or any Lender against any Borrower.
(i) This Section 2.18 the Foreign Currency Agent, as applicable, shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) Upon receipt by the Administrative Agent of payments on behalf of Lenders, the Administrative Agent shall promptly distribute such payments to the each relevant Lender or Lenders entitled theretoFronting Lender, as the case may be, promptly upon receipt in like funds as received received, net of any amounts owing by the Administrative Agentsuch Lender pursuant to Section 9.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans by the Company 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 of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of the Delayed Draw Ticking Fee and each reduction in Delayed Draw Commitments, shall be allocated pro rata among the Delayed Draw Lenders in accordance with their Delayed Draw Commitments. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three 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 Base Rate Loans under the relevant Facility, on demand, from the applicable Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the thesuch 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Harsco Corp)
Pro Rata Treatment and Payments. (a) Each Borrowing borrowing of Term Revolving Credit Loans (other than Swing Line Loans) by the Company Borrower from the Term Loan Revolving Credit Lenders hereunder, hereunder shall be made 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, pro rata according to the 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 Loan shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal Dollar Equivalent 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 Loan Percentages Loans shall be allocated by the Administrative Agent pro rata according to the respective outstanding principal amounts of such Term Loans then held by the Term Loan Lenders. Each payment of 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 on any Competitive Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders participating in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, Loan in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts amount of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such BorrowingLoans. For purposes of determining (i) the aggregate available Available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lendertime, each outstanding Competitive Borrowing Loan shall be deemed to have utilized the Revolving Credit Commitments Commitment of the Revolving Credit Lenders (including those Revolving Credit Lenders which that shall not have made Revolving Credit Loans as part of such Competitive BorrowingLoans) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by the Borrower hereunder and under any Borrower hereunderNotes in any Currency, whether on account of principal, interest, fees fees, Reimbursement Obligations or otherwise, shall be made in such Currency without setoff set-off or counterclaim 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 LendersLoans or the L/C Participants, as the case may be, at the Payment OfficeAdministrative Agent's office specified by the Administrative Agent from time to time, in Dollars such Currency and in immediately available available, freely transferable funds. Any payment made Payments received by any Borrower the Administrative Agent after 1:00 P.M., New York City time, on any Business Day such time shall be deemed to have been received on the next following Business Day. If any payment hereunder (other than payments on 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 Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof of such payment shall be extended to the next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension 64 58 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 To the case extent that any EMU legislation provides that an amount denominated either in the euro or in the national currency unit of any extension a participating member state and payable within that participating member state by crediting an account of any payment of principal pursuant the creditor can be paid by the debtor either in the euro unit or in that national currency unit, each party to the preceding two sentences, interest thereon this Agreement shall be payable at entitled to pay or repay any such amount either in the then applicable rate during euro unit or in such extensionnational currency unit.
(gb) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share Commitment Percentage of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a in the case of any amount denominated in Dollars, or the rate determined customary in such Currency for settlement of similar interbank obligations in the case of any amount denominated in an Available Foreign Currency as quoted by the Administrative Agent Agent, in accordance with banking industry rules on interbank compensationeach case, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph subsection shall be conclusive in the absence of manifest error. If such Lender’s share 's Commitment Percentage of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate ABR Loans, in the case of obligations denominated in Dollars, or the rate per annum applicable to Eurocurrency Loans under having an Interest Period of one day, in the relevant Facilitycase of payment obligations denominated in an Available Foreign Currency, in each case, on demand, from the Borrower.
(hc) Unless With respect to the payment of any amount denominated in the euro or in a national currency unit, the Administrative Agent shall not be liable to any Borrower or any of the Lenders in any way whatsoever for any delay, or the consequences of any delay, in the crediting to any account of any amount required by this Agreement to be paid by the Administrative Agent if the Administrative Agent shall have been notified taken all relevant steps to achieve, on the date required by this Agreement, the payment of such amount in writing by any Borrower prior immediately available, freely transferable, cleared funds (in the euro unit or, as the case may be, in a national currency unit) to the date account of any payment due to be made by any Borrower hereunder that Lender in the principal financial center in the participating member state which such Borrower will not make or, as the case may be, such payment Lender shall have specified for such purpose. In this paragraph, "all relevant steps" means all such steps as may be prescribed from time to time by the Administrative Agent, regulations or operating procedures of such clearing or settlement system as the Administrative Agent may assume that from time to time determine for 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 purpose 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights clearing or settling payments of the Administrative Agent or any Lender against any Borrowereuro.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Term Loan Percentages, Optional Term Loan Percentages for the relevant Optional Term Loan Tranche or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans and Loans, each payment in respect of fees payable hereunder hereunder, and each payment in respect of Reimbursement Obligations, shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans outstanding under the Term Loan Facility shall be allocated among the Term Loan Lenders holding such pro rata based on the outstanding principal amounts of the Term Loans then held by the Term Loan Lenders (except as otherwise provided in Section 2.10(f)), and shall be applied to the installments of the Term Loans pro rata based on the remaining outstanding principal amount amounts of such Term Loans held by such Term Loan Lendersinstallments. Amounts paid repaid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with pro rata based on the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) The application of any payment of Loans under any Facility (including mandatory prepayments but excluding optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency Eurodollar Loans under such Facility. The application of optional prepayments shall be as directed by the Borrower. 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.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such 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 such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages, Delayed Draw Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans and Delayed Draw Term Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each payment on account of principal (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 the installments of such Term Loans in the inverse order of the scheduled maturities of such installments. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment prepayment) of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Delayed Draw Term Loans shall be allocated among the Delayed Draw Term Loan Lenders pro rata among based on the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (orprincipal amount of such Delayed Draw Term Loans held by such Delayed Draw Term Loan Lenders, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing and shall be allocated pro rata among applied to the Revolving Credit Lenders participating installments of such Delayed Draw Term Loans in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments inverse order of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment scheduled maturities of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments such installments. Amounts prepaid on account of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Delayed Draw Term Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall may not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountreborrowed.
(d) 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. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(e) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.12:00 Noon, New York City time, on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Revolving Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the relevant Revolving Commitments of the relevant Lenders. It is understood that each borrowing of Revolving Loans shall be allocated to such Revolving Facility as shall be selected by the Borrower.
(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 Term Loan Percentages of the Term Loan Lenders. Each payment of interest in respect outstanding principal amounts of the Term Loans and then held by the Term Lenders (except as otherwise provided in Section 2.15(d)). The amount of each payment in respect principal prepayment of fees payable hereunder the Term Loans shall be applied to reduce the amounts then remaining installments of such obligations owing to the Tranche A Term Loans, Tranche B Term Loans and Incremental Term Loans, as the case may be, pro rata based upon the then remaining principal amount thereof. Amounts prepaid on account of the Term Loan Lenders Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Existing Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Existing Revolving Loans then due and owing to held by the applicable Term Loan Existing Revolving Lenders.
(b) . Each payment (including each prepayment) by the Borrower 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Restatement Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Restatement Revolving Credit Lenders participating in such Borrowing in accordance with Loans then held by the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Restatement Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment Notwithstanding anything to the contrary in this Agreement, with respect to the amount of any mandatory prepayment of the Term Loans pursuant to Section 2.9 and, if the Borrower so elects in its sole discretion, any optional prepayment of the Term Loans pursuant to Section 2.8, that in any such case is allocated to Tranche B Term Loans or Incremental Term Loans (such amounts, the “Tranche B Prepayment Amount” and the “Incremental Prepayment Amount”, respectively), at any time when Tranche A Term Loans remain outstanding, the Borrower will (or, in the case of optional prepayments, may), in lieu of applying such amount to the prepayment of Tranche B Term Loans and Incremental Term Loans, respectively, on the date specified in Section 2.9 or 2.8, as the case may be, for such prepayment, give the Funding Agent telephonic notice (promptly confirmed in writing) requesting that the Funding Agent prepare and provide to each Tranche B Lender and Incremental Term Lender a notice (each, a “Prepayment Option Notice”) as described below. As promptly as practicable after receiving such notice from the Borrower, the Funding Agent will send to each Tranche B Lender and Incremental Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit F, and shall include an offer by the Borrower to prepay on the date (each a “Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the prepayment amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Tranche B Term Loans or Incremental Term Loans, as the case may be. On the Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Lenders and Incremental Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of Reimbursement Obligations which such Lenders have accepted prepayment as described above, (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to 50% (or, in respect the case of any Letter of Credit optional prepayments, such percentage as shall be made determined by the Borrower in its sole discretion) of the portion of the Tranche B Prepayment Amount and the Incremental Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied to each Issuing Lender that issued such Letter the prepayment of Creditthe Tranche A Term Loans, and (iii) the Borrower shall be entitled to retain the remaining portion of the Tranche B Prepayment Amount and the Incremental Prepayment Amount not accepted by the relevant Lenders.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M.12:00 Noon, New York City Dallas time, on the due date thereof to the Administrative Funding Agent, for the account of the relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Funding Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Funding Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Funding Agent, the Administrative Funding Agent may assume that such Lender is making such amount available to the Administrative Funding Agent, and the Administrative Funding 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 Funding Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Funding 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 Lender makes such amount immediately available to the Administrative Funding Agent. A certificate of the Administrative Funding Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Funding Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Funding Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate ABR Loans under the relevant Facility, on demand, from the Borrower. Nothing in this paragraph shall be deemed to limit the rights of the Funding Agent or the Borrower against any Lender.
(hg) Unless the Administrative Funding Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such the Borrower will not make such payment to the Administrative Funding Agent, the Administrative Funding Agent may assume that the Borrower is making such payment, and the Administrative Funding 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 Funding Agent by such the Borrower within three Business Days after of such due required date, the Administrative Funding 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 Funding Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each Subject to Section 2.18(c), each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 payment on account of principal (including each prepayment) of the Term Loans outstanding under outstanding, except prepayments made with the Term Loan Facility proceeds of an issuance of Capital Stock required by Section 2.12(a), 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. Each prepayment of Term Loans required by Section 2.12(a) to be made with the proceeds of Capital Stock shall be allocated among the Term Loan Lenders holding such Term Loans pro rata based upon 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 paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of connection with any Letter of Credit shall be made to the Issuing Lender.
(d) Notwithstanding anything to the contrary in Section 2.12 or this Section 2.18, so long as any Term Loans are outstanding, each Issuing Term Loan Lender may, at its option, decline up to 100% of the portion of any mandatory prepayment applicable to the Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.12 that issued is allocated to Term Loans (such Letter amount, the “Prepayment Amount”), the Borrower will, (i) in the case of Creditany optional prepayment which the Borrower wishes to make, not later than 10 Business Days prior to the date on which the Borrower wishes to make such optional prepayment, and (ii) in the case of any mandatory prepayment required to be made pursuant to Section 2.12, in lieu of applying such amount to the prepayment of Term Loans, as provided in Sections 2.12(d) and 2.18(b), on the date specified in Section 2.12 for such prepayment, (x) deposit such amount in a cash collateral account opened by the Administrative Agent pending application of such amount in accordance with this Section 2.18(d), and (y) give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Loan Lender a Prepayment Option Notice, substantially in the form of Exhibit G hereto. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Term Loan Lender a Prepayment Option Notice, which shall specify that prepayment of the relevant Term Loans of such Lender will be made on the date (each a “Prepayment Date”) that is 10 Business Days after the date of the Prepayment Option Notice, in an amount equal to the portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as being applicable to such Lender’s Term Loans unless such Term Loan Lender elects to decline such prepayment. On the Prepayment Date, (i) the Administrative Agent shall apply from the amount deposited in the cash collateral account pursuant to this Section 2.18(d) the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which the Term Loan Lenders have accepted prepayment as described below, and (ii) the Administrative Agent shall pay to the Borrower from the amount deposited in such cash collateral account the remaining portion of the Prepayment Amount not accepted by the Term Loan Lenders. Each of TTPC, LP and the Borrower hereby grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing security interest in all amounts at any time on deposit in such cash collateral account to secure all Obligations from time to time outstanding. Each Term Loan Lender shall evidence its election to decline up to 100% of that portion of the Prepayment Amount indicated in such Lender’s Prepayment Option Notice as a prepayment on such Lender’s Term Loans by written confirmation as specified in such Prepayment Option Notice; failure to provide such written confirmation shall be deemed to be an election to accept all of such portion of the Prepayment Amount.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless Subject to Section 2.18(d), unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such 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 such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Ws Financing Corp)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Initial Term Loan Percentages or Revolving Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of interest in respect .
(b) Mandatory prepayments of the Term Loans and each payment in respect of fees payable hereunder required by Section 2.11 shall be applied to the amounts of such obligations owing to the Term Loan Lenders made pro rata according to the respective outstanding amounts then due and owing to of the Term Loans, provided that Incremental Term Loans may be prepaid on a less favorable basis if specified in the applicable Term Loan Lenders.
(b) Incremental Facility Activation Notice. Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Initial Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Initial Term Loans then held by the Initial Term Lenders. 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 amount of the Incremental Term Loans then held by the Incremental Term Lenders. The amount of each mandatory principal prepayment of the Term Loans outstanding under the Term Loan Facility shall be allocated among applied, first, to reduce the Term Loan Lenders holding such then remaining installments of the Initial 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 on 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 such the Initial Term Loans held and the Incremental Term Loans as directed by such Term Loan Lendersthe Borrower. Amounts paid repaid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment made The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed such Lender pursuant to have been on the next following Business DaySection 9.7. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(ge) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate ABR Loans under the relevant Facility, on demand, from the Borrower.
(hf) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.Federal
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans by the Company 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 of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of the Delayed Draw Ticking Fee and each reduction in Delayed Draw Commitments, shall be allocated pro rata among the Delayed Draw Lenders in accordance with their Delayed Draw Commitments. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Harsco Corp)
Pro Rata Treatment and Payments. (a) Each Borrowing EachExcept for the borrowing of Term the Third Amendment Incremental Revolving Credit Loans which shall be borrowed pursuant to Section 2.2(a)(ii), each borrowing by the Company Borrower from the Term Loan Lenders hereunder, hereunder shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each EachSubject to clause (i) below with respect to Revolving Credit Loans, each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders. EachSubject to clause (i) below with respect to Revolving Credit Loans, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Revolving Credit Commitments of the Lenders shall be made pro rata according to the Revolving Credit Percentages of the Revolving Credit Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each payment (including each prepayment) on account of principal of the Term Loans outstanding under the 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. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby BorrowingEachSubject to clause (i) below, each payment or prepayment (including each prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender Bank that issued such Letter of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency Eurodollar 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 accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars the relevant currency and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M., 12:00 Noon (New York City time, ) on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Rate Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(f) Unless the Administrative Agent shall have been notified by any Lender prior to the applicable Borrowing Date that such Lender does not intend to make available to the Administrative Agent the amount of such Lender’s Loan requested on such Borrowing Date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such Borrowing Date and the Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the Borrower a corresponding amount on such Borrowing Date. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Borrowing Date until the date such amount is paid to the Administrative Agent, at the customary rate set by the Administrative Agent for the correction of errors among banks for three (3) Business Days and thereafter at the Base Rate. In the event that (i) the Administrative Agent declines to make a requested amount available to the Borrower until such time as all applicable Lenders have made payment to the Administrative Agent, (ii) a Lender fails to fund to the Administrative Agent all or any portion of the Loans required to be funded by such Lender hereunder prior to the time specified in this Agreement and (iii) such Lender’s failure results in the Administrative Agent failing to make a corresponding amount available to the Borrower on the Borrowing Date, at Administrative Agent’s option, such Lender shall not receive interest hereunder with respect to the requested amount of such Lender’s Loans for the period commencing with the time specified in this Agreement for receipt of payment by the Borrower through and including the time of the Borrower’s receipt of the requested amount. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent together with interest thereon, for each day from such Borrowing Date until the date such amount is paid to the Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Class of Loans. Nothing in this Section 2.15(f) shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(jh) 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.
(i) Notwithstanding anything in this Agreement to the contrary, on or prior to the earlier of (x) the Conversion Date and (y) the date on which all outstanding Third Amendment Incremental Revolving Credit Loans have been repaid, (i) each payment of interest in respect of Third Amendment Incremental Revolving Credit Loans and each payment in respect of fees payable hereunder with respect thereto shall be applied solely to the amounts of such obligations owing to Citizens Bank of Pennsylvania and the Revolving Credit Lenders agree to such application on a non-pro rata basis, (ii) each payment by the Borrower on account of any commitment fee payable in connection with the Third Amendment Incremental Revolving Credit Loans and any reduction of the Incremental Revolving Credit Commitments corresponding to the Third Amendment Incremental Revolving Credit Loans shall be made solely to Citizens Bank of Pennsylvania and the Revolving Credit Lenders agree to such application on a non-pro rata basis and (iii) the payment (including each prepayment) by the Borrower on account of principal of the Third Amendment Incremental Revolving Credit Loans shall be made solely to Citizens Bank of Pennsylvania and the Revolving Credit Lenders agree to such application on a non-pro rata basis.
Appears in 1 contract
Pro Rata Treatment and Payments. (ai) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunderhereunder and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. .
(ii) Each payment by the Borrower on account of any commitment fee or Letter of Credit fee hereunder shall be allocated among the Revolving Credit Lenders pro rata according to the respective Revolving Credit Percentages of the Revolving Credit Lenders.
(iii) Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans Loans, and each payment in respect of fees payable hereunder hereunder, shall be applied to the amounts of such obligations owing to allocated among the Term Loan Lenders pro rata according to the respective amounts of such principal, interest or fees then due and owing to the applicable Term Loan Lenders.
(b) Each payment on account of principal (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 according to the principal amount of such Term Loans held by such Term Loan Lenders, and each principal prepayment shall be applied to the installments of such Term Loans pro rata according to the remaining outstanding principal amount of such installments. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with pro rata according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars (or, in the case of L/C Obligations in any Designated Foreign Currency, such Designated Foreign Currency or, to the extent required by Section 3.5, Dollars) and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.12:00 Noon, New York City time, on any Business Day shall be deemed to have been made on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Serologicals Corp)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Tranche D Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Tranche D Term Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations then due and owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each payment on account (including each prepayment) of principal of the outstanding Tranche D Term Loans outstanding under the Term Loan Facility shall be allocated among the Tranche D Term Loan Lenders holding such Tranche D Term Loans pro rata based on the principal amount of such Tranche D Term Loans held by such Tranche D Term Loan Lenders. Amounts paid or prepaid Each optional prepayment in respect of the Tranche D Term Loans shall be allocated among the remaining installments thereof in accordance with the Borrower’s instructions. Each mandatory prepayment in respect of the Tranche D Term Loans shall be applied to the installments of such Tranche D Term Loans first, in direct order of the next four scheduled installments thereof to become due under Section 2.3(a) or (b), and thereafter, pro rata based on the remaining outstanding principal amount of the remaining installments. Amounts repaid or prepaid on account of the Tranche D Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demandwithin three Business Days after demand therefor, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (UCI Holdco, Inc.)
Pro Rata Treatment and Payments. (al) Each Revolving Credit Borrowing of Term Loans from the Lenders hereunder, each payment by the Company on account of any facility fee hereunder and (except as provided in subsection 2.23(c)) any reduction of the Revolving Credit Commitments of the Revolving Credit Lenders shall be made pro rata according to the relevant respective Revolving Credit Commitment Percentages of the Revolving Credit Lenders under the relevant Revolving Credit Facility. Each Term Borrowing from the Term Loan Lenders hereunder, 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 Loan Percentages Commitments of the Term Loan LendersLenders under the relevant Term Loan Facility. Each payment (including each prepayment) by any Borrower on account of principal of and interest in respect of on the Revolving Credit Loans or Term Loans and each payment in respect of fees payable hereunder under any Facility shall be applied to the amounts of such obligations owing to the Term Loan Lenders made pro rata according to the respective outstanding principal amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, Loans or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Term Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency Loans 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 (except in then held by the case Swing Line Lenders. Each payment by a Japanese Borrower on account of Revolving Credit principal of or interest on the Yen Swing Line Loans that are Base Rate Loans) shall be accompanied by accrued interest made pro rata according to the date respective outstanding principal amounts of such the Yen Swing Line Loans then held by the Yen Swing Line Lenders. Each payment by the Company on account of principal of or interest on the amount paidIrish Swing Line Loans shall be made pro rata according to the respective outstanding principal amounts of the Irish Swing Line Loans then held by the Irish Swing Line Lenders.
(fa) All payments (including prepayments) to be made by any Borrower the Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim 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 thereof. The Agent shall distribute such payments to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, Lenders promptly upon receipt in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Daylike funds as received. If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, 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 Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gb) Unless the Administrative Agent (or applicable Sub-Agent) shall have been notified in writing by any Lender prior to the deadline for funding a Borrowing that such Lender will not make the amount that would constitute its pro rata share of such Borrowing available to the Administrative Agent (or applicable Sub-Agent), the Administrative Agent (or applicable Sub-Agent) may assume that such 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 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 Lender shall pay to the Administrative Agent (or applicable Sub-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 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 Lender with respect to any amounts owing under this paragraph subsection 2.18 shall be conclusive in the absence of manifest error. If such Lender’s pro rata share of such Borrowing is not made available to the Administrative Agent (or applicable Sub-Agent) by such Lender within three Business Days after of such Borrowing Dateborrowing date, the Administrative Agent (or applicable Sub-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 Base Rate Loans under the relevant FacilityFederal Funds Rate, on demand, from the applicable Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each Subject to Section 2.18(c), each payment (other than prepayments and payments with respect to increased costs/taxes) in respect of principal or interest in respect of the Term Loans Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the 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 paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of connection with any Letter of Credit shall be made to the applicable Issuing Lender.
(d) Notwithstanding anything to the contrary in Section 2.12 or this Section 2.18, so long as any Tranche A Term Loans are outstanding, each Issuing Tranche B Term Loan 40 45 Lender may, at its option, decline up to 100% of the portion of any mandatory payment applicable to the Tranche B Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.12 that issued is allocated to Tranche B Term Loans (such Letter amounts, the "Tranche B Prepayment Amount"), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in the case of Creditany mandatory prepayment required to be made pursuant to Section 2.12, in lieu of applying such amount to the prepayment of Tranche B Term Loans as provided in Sections 2.12(d) and 2.18(b), on or up to 10 Business Days prior to the date specified in Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Loan Lender a Prepayment Option Notice as described below and, on the date specified in Section 2.12 for such prepayment, deposit such amount in a cash collateral account opened by the Administrative Agent pending application of such amount in accordance with this Section 2.18(d). As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall include an offer by the Borrower to prepay on the date (each a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Tranche B Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. Any Tranche B Term Loan Lender which desires to decline the prepayment of a portion of its Tranche B Term Loans shall so notify the Administrative Agent no later than 11:00 A.M. (New York City time) on or prior to the fifth Business Day prior to the Prepayment Date and any Tranche B Term Loan Lender who does not so respond shall be deemed to have accepted the applicable prepayment. On the Prepayment Date, (i) the Administrative Agent shall apply from the amount deposited in the cash collateral account pursuant to this Section 2.18(d) the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which the Tranche B Term Loan Lenders have accepted prepayment as described above (each such accepting Tranche B Term Loan Lender, an "Accepting Lender"), and such amount shall be applied to reduce the Tranche B Prepayment Amount with respect to each Accepting Lender, (ii) the Administrative Agent shall apply from the amount deposited in the cash collateral account pursuant to this Section 2.18(d) an amount equal to 50% of the portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Loan Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans, and (iii) the Administrative Agent shall pay to the Borrower from the amount deposited in such cash collateral account the remaining 50% of the portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Loan Lenders; provided that if the amount held in such cash collateral account is less than the total amount required to be paid pursuant to clauses (i) and (ii) of this sentence, the Borrower shall pay to the Administrative Agent, on the Prepayment Date, in immediately available funds an amount equal to the difference between such amounts. Each of Holdings and the Borrower hereby grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing security interest in all amounts at any time on deposit in such cash collateral account to secure all Obligations from time to time outstanding.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless Subject to Section 2.18(d), unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such 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 such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(h) Each prepayment (other than, with respect to proceeds received with respect to a Recovery Event (as contemplated by Section 2.12(b)) or pursuant to Section 2.12(c)) in respect of the Tranche B Term Loans shall be accompanied by a prepayment premium equal to (i) This Section 2.18 shall not be construed to apply to any payment if such prepayment is made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject on or prior to the provisions first anniversary of Section 2.22 the Closing Date, 102% of 42 47 the principal amount of such prepayment and Section 2.24.
(jii) Upon receipt by if such prepayment is made after the Administrative Agent first anniversary of payments on behalf of Lenders, the Administrative Agent shall promptly distribute such payments Closing Date and through the second anniversary to the Lender or Lenders entitled theretoClosing Date, in like funds as received by 101% of the Administrative Agentprincipal amount of such prepayment.
Appears in 1 contract
Samples: Credit Agreement (Buffets Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages, Tranche C Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 under principal amounts of the Term Loan Facility shall be allocated among Loans then held by the Term Loan Lenders holding such (except as otherwise provided in Section 2.16(d)). The amount of each principal prepayment of the Term Loans pro rata based on shall be applied to reduce the principal amount then remaining installments of such the Tranche A Term Loans, Tranche B Term Loans held by such and Tranche C Term Loan LendersLoans, as the case may be, in the inverse order of maturity. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each Notwithstanding anything to the contrary in Section 2.10 or elsewhere in this Section 2.16, so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender and each Tranche C Term Loan Lender may, at its option, decline the portion of any optional prepayment or mandatory payment applicable to the Tranche B Term Loans or, as the case may be, Tranche C Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.10 that is allocated to Tranche B Term Loans or, as the case may be, Tranche C Term Loans (such amount, the "TRANCHE B PREPAYMENT AMOUNT" or, as the case may be, the "TRANCHE C PREPAYMENT AMOUNT"), at any time when Tranche A Term Loans remain outstanding, the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans or, as the case may be, Tranche C Term Loans, as provided in paragraph Section 2.10(d), on the date specified in Section 2.10 for such prepayment, give the Agent telephonic notice (promptly confirmed in writing) requesting that the Agent prepare and provide to each Tranche B Term Loan Lender and each Tranche C Term Loan Lender a notice (each, a "PREPAYMENT OPTION NOTICE") as described below. As promptly as practicable after receiving such notice from the Borrower, the Agent will send to each Tranche B Term Loan Lender and each Tranche C Term Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each, a "PREPAYMENT DATE") that is 10 Business Days after the date of the Prepayment Option Notice, the Tranche B Term Loans or, as the case may be, Tranche C Term Loans of such Lender by an amount equal to the Tranche B Prepayment Amount or, as the case may be, Tranche C Prepayment Amount indicated in such Lender's Prepayment Option Notice. On the Prepayment Date, (A) the Borrower shall pay to the Agent the aggregate amount necessary to prepay that portion of the outstanding Tranche B Term Loans and Tranche C Term Loans in respect of Reimbursement Obligations in respect of any Letter of Credit which Tranche B Term Loan Lenders and Tranche C Term Loan Lenders have accepted prepayment as described above (such Lenders, the "ACCEPTING LENDERS"), and such amount shall be made applied to reduce the Tranche B Prepayment Amounts and the Tranche C Prepayment Amounts, respectively, with respect to each Issuing Accepting Lender that issued and (B) the Borrower shall pay to the Agent an amount equal to the portion of the Tranche B Prepayment Amount and the Tranche C Prepayment Amount not accepted by the Accepting Lenders, and such Letter amount shall be applied to the prepayment of Creditthe Tranche A Term Loans.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.16(f) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate ABR Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata PRO RATA shares of a corresponding amount. If such payment is not made to the Administrative Agent by such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Friendlys Restaurants Franchise Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each 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 Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders. The application of any prepayment pursuant to this Section 2.18 shall be made, first, to Base Rate Loans and, second, to Eurocurrency Loans.
(b) Each mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment of the Term Loans made pursuant to Section 2.11 shall be allocated among the Term Loan Facilities in accordance with the Borrower’s instructions. Each payment on account of principal (including each mandatory prepayment) of the Term Loans outstanding under the 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 paid repaid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of connection with any Multicurrency Letter of Credit shall be made to each the Multicurrency Issuing Lender that issued such Letter of CreditLender.
(ed) The application of any payment of Loans under any Facility (including excluding optional and including mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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.
(f) . All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars or Euros and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(ge) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hf) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such 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 such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrowers from the Term Loan Lenders hereunder, each payment by the Borrowers on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.10 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each payment (including each prepayment) on account of principal of the Term Loans outstanding under the 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 paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided set forth in Section 2.25, each Standby Borrowing2.22, each payment or prepayment (including each prepayment) by a Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any Borrower the Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower the Borrowers after 1:00 P.M.12:00 Noon, New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing made available by the Administrative Agent to the relevant Borrower is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the BorrowerBorrowers.
(hg) Unless the Administrative Agent shall have been notified in writing by any Borrower the Borrowers prior to the date of any payment due to be made by any Borrower the Borrowers hereunder that such Borrower the Borrowers will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is Borrowers are making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by such Borrower 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 any Borrowerthe Borrowers.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(jh) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata PRO RATA according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 under principal amounts of the Term Loan Facility shall be allocated among Loans then held by the Term Loan Lenders holding such (except as otherwise provided in Section 2.16(d)). The amount of each principal prepayment of the Term Loans pro rata based on shall be applied to reduce the principal amount then remaining installments of such the Tranche A Term Loans held by such and Tranche B Term Loan LendersLoans, as the case may be, in the inverse order of their respective maturities. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made PRO RATA according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment Notwithstanding anything to the contrary in Sections 2.9, 2.10 or 2.16, so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender may, at its option, decline up to 50% of the portion of any optional prepayment or mandatory prepayment applicable to the Tranche B Term Loans of such Lender; accordingly, with respect to the amount of any optional prepayment described in Section 2.9 or mandatory prepayment described in Section 2.10 that is allocated to Tranche B Term Loans (such amount, the "TRANCHE B PREPAYMENT AMOUNT"), at any time when Tranche A Term Loans remain outstanding, the Borrower will, (i) in the case of any optional prepayment which the Borrower wishes to make, not later than ten Business Days prior to the date on which the Borrower wishes to make such optional prepayment, and (ii) in the case of any mandatory prepayment required to be made pursuant to Section 2.10, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in paragraph Section 2.10(d), on the date specified in Section 2.10 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Loan Lender a notice (each, a "PREPAYMENT OPTION NOTICE") as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each a "PREPAYMENT DATE") that is five Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. On the Prepayment Date, (i) the Borrower shall pay to the Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of Reimbursement Obligations in which Tranche B Term Loan Lenders have accepted prepayment as described above (such Lenders, the "ACCEPTING LENDERS"), and such amount shall be applied to reduce the Tranche B Prepayment Amounts with respect to each Accepting Lender, (ii) the Borrower shall pay to the Administrative Agent an amount equal to 50% of the portion of the Tranche B Prepayment Amount not accepted by the Accepting Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans, and (C) the Borrower shall be entitled to retain the remaining 50% of the portion of the Tranche B Prepayment Amount not accepted by the Accepting Lenders. Each Term Loan Lender other than an Accepting Lender shall receive its portion of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Creditoptional prepayment or mandatory prepayment as set forth in Sections 2.9, 2.10 and 2.16.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.16(f) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata PRO RATA shares of a corresponding amount. If such payment is not made to the Administrative Agent by such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Axiohm Transaction Solutions Inc)
Pro Rata Treatment and Payments. (ai) Each Borrowing borrowing of Revolving Credit Loans or Term Loans Loans, as the case may be, by the Company from the Term Loan Lenders hereunder, hereunder shall be made pro rata according to the respective Revolving Credit Commitment Percentages or the Term Loan Commitment Percentages, as the case may be, of the Lenders in effect on the date of such borrowing. Subject to subsection 2.10(b), each borrowing of New Revolving Credit Loans by the Company from the New Revolving Credit Lenders made (A) under the Existing New Revolving Credit Commitments shall be made pro rata according to the Existing New Revolving Credit Commitment Percentages of the New Revolving Credit Lenders in effect on the date of such borrowing and (B) under the New Revolving Credit Commitment Increases shall be made pro rata according to the New Revolving Credit Commitment Increase Percentages of the New Revolving Credit Lenders in effect on the date of such borrowing. Each payment by the Company on account of any commitment fee or letter of credit fee hereunder shall be allocated by the Administrative Agent among the Lenders in accordance with the respective amounts which such Lenders are entitled to receive pursuant to subsection 5.5. Subject to subsection 2.13, any reduction of the Existing New Revolving Credit Commitments, New Revolving Credit Commitment Increases, Revolving Credit Commitments or the Term Loan Commitments, as the case may be, of the Lenders shall be allocated by the Administrative Agent among the Lenders pro rata according to the Existing New Revolving Credit Commitment Percentages, New Revolving Credit Commitment Increase Percentages, Revolving Credit Commitment Percentages or the Term Loan Commitment Percentages, as the case may be, of such Lenders. Each payment by the Company on account of principal of or interest in respect of the Revolving Credit Loans, Term Loans and each payment in respect of fees payable hereunder or, after the New Revolving Credit Conversion Date, New Revolving Credit Loans shall be applied to allocated by the amounts of such obligations owing to the Term Loan Lenders Administrative Agent pro rata according to the respective amounts thereof then due and owing to each Lender. During the applicable Term Loan Lenders.
(b) Each New Revolving Credit Commitment Period, each payment by the Company on account of principal of the Term or interest in respect of New Revolving Credit Loans outstanding made under the Term Loan Facility Existing New Revolving Credit Commitments or under the New Revolving Credit Commitment Increases shall be allocated among by the Term Loan Administrative Agent to the New Revolving Credit Lenders holding such Term Loans under the Existing New Revolving Credit Commitments or the New Revolving Credit Commitment Increases, as the case may be, pro rata based according to the respective amounts of such principal or interest then due and owing such New Revolving Credit Lenders; provided that during the New Revolving Credit Commitment Period, no payment of principal shall be made on the principal amount of such Term New Revolving Credit Loans held by such Term Loan Lendersmade under the Existing New Revolving Credit Commitments at any time when any New Revolving Credit Loans made under the New Revolving Credit Commitment Increases are outstanding. Amounts paid or prepaid in respect Prepayments of Term Loans may not be reborrowed. For the avoidance of doubtor New Revolving Credit Loans pursuant to subsections 5.4(a), Section 2.18(a5.4(d) and 5.4(e) shall be applied (bx) do not prohibit non pro rata payments of differing Classes of Term Loans according to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment thereof then due and owing to each Lender and (y) to the respective installments of principal thereof in inverse order of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowingmaturity. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower the Company in respect of New Revolving Credit Loans, Revolving Credit Loans or Term Loans hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 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 relevant LendersLenders entitled thereto, at the Payment OfficeAdministrative Agent's office specified in subsection 13.2, in U.S. Dollars and in immediately available funds. Any The Administrative Agent shall distribute such payments to the Lenders entitled to receive the same promptly upon receipt in like funds as received.
(ii) Each borrowing of Pounds Sterling Loans by the Company or the Foreign Subsidiary Borrower shall be made pro rata according to the Revolving Credit Commitment Percentages of the Lenders. Each payment (including each prepayment) by the Company or the Foreign Subsidiary Borrower on account of principal of and interest on Pounds Sterling Loans shall be allocated by the Administrative Agent pro rata according to the respective amounts of the Pounds Sterling Loans then due and owing by the Company or the Foreign Subsidiary Borrower to each Lender. All payments (including prepayments) to be made by any the Company or the Foreign Subsidiary Borrower after 1:00 P.M.hereunder, New York City timewhether on account of principal, interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made at or before 11:00 A.M. London Time, on any Business Day the due date thereof to the Administrative Agent, for the account of the Lenders, at the Administrative Agent's office located at Trinity Tower, 9 Thomas Moore Street, London, England E1 9YT, in Pounds Sterling xxx xx xxxxxxxxxxx xxxxxxxxx xxxxx. Xxx Xxxinistrative Agent shall be deemed distribute such payments to have been on the next following Business Day. Lenders entitled to receive the same promptly upon receipt in like funds as received.
(iii) If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans and the Pounds Sterling 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 Eurocurrency Eurodollar Loan or a Pounds Sterling Loan becomes due and payable on a day other than a Business Day, the maturity thereof of such payment shall be extended to the next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gb) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing Date that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate (in the case of a borrowing of Revolving Credit Loans, New Revolving Credit Loans or Term Loans) and (ii) a rate determined by the Administrative Agent Agent's reasonable estimate of its average daily cost of funds (in accordance with banking industry rules on interbank compensationthe case of a borrowing of Pounds Sterling Loans), in each case for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph subsection shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent applicable Borrower shall also be entitled to recover repay such amount Lender's share of such borrowing (together with interest thereon from the date such amount was made available to such Borrower (i) at the rate per annum applicable to Base Rate ABR Loans under hereunder (in the relevant Facility, on demand, case of amounts made available in U.S. Dollars) and (ii) the Administrative Agent's reasonable estimate of its average daily cost of funds plus the Applicable Margin applicable to Pounds Sterling Loans (in the case of a borrowing of Pounds Sterling Loans)) to the Administrative Agent not later than three Business Days after receipt of written notice from the BorrowerAdministrative Agent specifying such Lender's share of such borrowing that was not made available to such Administrative Agent, and the Borrower shall have the right to pursue any remedies against such Lender for its failure to make its portion of such borrowing available.
(hc) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the a date of any on which a payment is due to be made by any from such Borrower hereunder that such Borrower will not make such payment available to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such paymentamount available to the Administrative Agent, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the applicable Lenders their respective pro rata shares of a corresponding amount. If such payment amount is not made available to the Administrative Agent by such Borrower within three Business Days after such the required time on the due datedate therefor, each applicable Lender shall pay to the Administrative Agent shall be entitled to recoverAgent, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the a rate per annum equal to (i) the daily average Federal Funds Effective RateRate (in the case of a borrowing of Revolving Credit Loans, New Revolving Credit Loans or Term Loans) and (ii) the Administrative Agent's reasonable estimate of its average daily cost of funds (in the case of a borrowing of Pounds Sterling Loans), in each case for the period until such Lender makes such amount immediately available to the Administrative Agent. Nothing herein shall be deemed to limit the rights A certificate of the Administrative Agent or submitted to any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply with respect to any payment made by any Borrower pursuant to and in accordance with the express provisions of amounts owing under this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 subsection shall be subject to conclusive in the provisions absence of Section 2.22 and Section 2.24manifest error.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing borrowing by any Borrower from the Lenders hereunder, each payment by the Parent Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective applicable Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11 and any payment pursuant to Section 2.3) by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied to scheduled installments of the Term Loans in direct order of maturity or as otherwise directed by the Parent Borrower. Each prepayment pursuant to Section 2.11 by the Parent Borrower on account of principal of and interest on thea Class of Term Loans shall be made pro rata according to the respective principal amounts of thesuch Class of Term Loans then held by the Company from Term Lenders and shall be applied to the installments of the Term Loan Lenders hereunderLoans as elected by the Parent Borrower. Each payment by the Parent Borrower pursuant to Section 2.3, including on the applicable Maturity Date for any Class of Term Loans, shall be made pro rata according to the respective outstanding principal amounts of such Class of Term Loan Percentages of Loans held by the Term Loan LendersLenders of such Class. Each payment of interest in respect 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 each payment in respect of fees payable hereunder interest on the Revolving Loans (other than Foreign Currency Loans) shall be applied to the amounts of such obligations owing to the Term Loan Lenders made pro rata according to the respective outstanding principal amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(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 L/C Foreign Currency would exceed the Foreign Currency Sublimit. Each Letter of Credit shall (i) be denominated in respect Dollars or another L/C Foreign Currency and (ii) expire no later than the earlier of Reimbursement Obligations in respect (x) the first anniversary of its date of issuance and (y) the date that is five Business Days prior to the Initial Maturity Date, provided that (A) any Letter of Credit with a one-year term may provide for the renewal thereof for additional one-year periods (which shall be made in no event extend beyond the date referred to each in clause (y) above) and (B) clause (x) above shall not apply to a Letter of Credit if such long-dated Letter of Credit is consented to by the applicable Issuing Lender that issued such Letter (but with an expiration date of Credit.
(e) 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 Eurocurrency 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 no longer than two years after the date of such payment on the amount paid.
(f) All payments (including prepayments) to be made by any Borrower hereunderissuance, whether on account of principal, interest, fees or otherwise, which shall be made without setoff or counterclaim 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to no event 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.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to beyond the date of any payment due referred to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrowerclause (y) above).
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Tempur Sealy International, Inc.)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company a Borrower from the Term Loan Lenders hereunder, each payment by a Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche B Term Loan Percentages, Tranche C Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each Subject to Section 2.18(c), each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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) (i) Each payment on account of principal (including each prepayment) of the Tranche B Term Loans outstanding under the any Tranche B Term Loan Facility shall be allocated among the Tranche B Term Loan Lenders holding such Tranche B Term Loans pro rata based on the principal amount of such Xxxxxxx X Term Loans held by such Tranche B Term Loan Lenders, and shall be applied to the installments of such Tranche B Term Loans pro rata based on the remaining outstanding principal amount of such installments. Amounts paid or prepaid in respect on account of the Tranche B Term Loans may not be reborrowed and (ii) each payment (including each prepayment) of the Tranche C Term Loans outstanding under any Tranche C Term Loan Facility shall be allocated among the Tranche C Term Loan Lenders holding such Tranche C Term Loans pro rata based on the principal amount of such Tranche C Term Loans held by such Tranche C Term Loan Lenders, and shall be applied to the installments of such Tranche C Term Loans pro rata based on the remaining outstanding principal amount of such installments. Amounts prepaid on account of the Tranche C Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by a Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of connection with any Letter of Credit shall be made to the Issuing Lender.
(d) Notwithstanding anything to the contrary in Section 2.12 or this Section 2.18, each Issuing Term Loan Lender may, at its option, decline all or any portion of any mandatory payment applicable to the Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.12 that issued is allocated to a Term Loan (such Letter amounts, the "Term Loan Prepayment Amount"), the Borrowers will, in lieu of Creditapplying such amount to the prepayment of applicable Term Loans, as provided in Sections 2.12(e) and 2.18(b), on or up to 10 Business Days prior to the date specified in Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Loan Lender entitled to receive a mandatory prepayment a Prepayment Option Notice as described below and, on the date specified in Section 2.12 for such prepayment, deposit such amount in a cash collateral account opened by the Administrative Agent pending application of such amount in accordance with this Section 2.18(d). As promptly as practicable after receiving such notice from the Borrowers, the Administrative Agent will send to each applicable Term Loan Lender a Prepayment Option Notice, which shall include an offer by the Borrowers to prepay on the date (each a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Term Loans. On the Prepayment Date, (i) the Administrative Agent shall apply from the amount deposited in the cash collateral account pursuant to this Section 2.18(d) the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which Term Loan Lenders have accepted prepayment as described above, and such amount shall be applied to reduce the Term Loan Prepayment Amounts with respect to each Accepting Lender, and (ii) the Administrative Agent shall pay to the applicable Borrower from the amount deposited in such cash collateral account the remaining portion of the Term Loan Prepayment Amount not accepted by the Term Loan Lenders; provided that if the amount held in such cash collateral account is less than the total amount required to be paid pursuant to clause (i) of this sentence, the Borrowers shall pay to the Administrative Agent, on the Prepayment Date, in immediately available funds an amount equal to the difference between such amounts. The Borrowers hereby grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing security interest in all amounts at any time on deposit in such cash collateral account to secure all Obligations from time to time outstanding.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower the Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M.1:00pm, New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the BorrowerBorrowers.
(hg) Unless Subject to Section 2.18(d), unless the Administrative Agent shall have been notified in writing by any Borrower the Borrowers prior to the date of any payment due to be being made by any Borrower hereunder that such Borrower the Borrowers will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is Borrowers are making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by such Borrower the Borrowers within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrowerthe Borrowers.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, hereunder and each payment by the Borrower on account of any commitment fee shall be made pro rata according to the respective Term Loan Percentages of the Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit applicable Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). .
(b) Each payment (including each prepayment under Section 4.03, but excluding any prepayment under Section 4.02) by the Borrower on account of principal of any Competitive Borrowing and interest on the Term Loans shall be allocated made pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with according to the respective outstanding principal amounts of their outstanding Competitive the Term Loans comprising then held by the Term Lenders (except to the extent that any applicable Extension Amendment, Refinancing Amendment or any Incremental Amendment for any Class of Extended Term Loans, Refinancing Term Loans or Incremental Term Loans, respectively, provides that such Borrowing. Each payment of interest on any Competitive Borrowing Extended Term Loans, Refinancing Term Loans or Incremental Term Loans shall be allocated entitled to less than pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts treatment; provided that any prepayment of accrued and unpaid interest on their outstanding Competitive Term Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized required as a result of such Competitive Borrowingthe incurrence of Credit Agreement Refinancing Indebtedness shall be applied solely to the applicable Class or tranche of Refinanced Debt). Each Revolving Credit Lender agrees that prepayment of the Tranche B Term Loans under Section 4.03 shall be applied as directed by the Borrower (and, absent such direction, in computing such Revolving Credit Lender’s portion direct order of maturity to the remaining scheduled installments of principal due in respect of the Tranche B Term Loans under Section 2.02). Each prepayment of any Borrowing to other Class of Term Loans shall be made hereunder, applied as agreed between the Administrative Agent may, Borrower and the Lenders in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage respect of such Borrowing to the next higher or lower whole Dollar Term Loans.
(or comparable unit of any applicable Alternative Currencyc) amount[Reserved].
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff setoff, defense or counterclaim 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 relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment made The Administrative Agent shall promptly distribute to each Lender in like funds as received any payments received by any Borrower after 1:00 P.M., New York City time, the Administrative Agent on any Business Day shall be deemed to have been on the next following Business Daybehalf of such Lender. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(ge) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hf) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such 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 such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(ig) This Section 2.18 4.09 shall not be construed to apply to any payment made by any the Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment expressly permitted under Section 10.0611.06. This Section 2.18 4.09 shall be subject to the provisions of Section 2.22 4.16 and Section 2.2412.01, 12.02 and 12.03. This Section 4.09 shall not be construed to apply to any payment made in connection with any assignment, purchase or other transaction expressly permitted under Section 11.06(g) or 11.06(h).
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the relevant Lenders; provided that (i) the borrowing of the Additional Tranche A Term Loans and the Additional Tranche B Term Loans shall be made by the Lenders with Additional Tranche A Term Loan Commitments or Additional Tranche B Term Loan Commitments, as the case may be, according to the respective Additional Tranche A Term Loan Percentages or Additional Tranche B Term Loan Percentages, as the case may be, of such Lenders and (ii) any borrowing of New Tranche B Term Loans shall be made by the Lenders with New Tranche B Term Loan Commitments pro rata in accordance with the respective New Tranche B Term Loan Percentages of the Term Loan such 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Subject to Section 2.16(d), each mandatory prepayment required by Section 2.10 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the 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 paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(d) Notwithstanding anything to the contrary in Sections 2.9, 2.10 or 2.16(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 2.9 or mandatory prepayment described in Section 2.10 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 Borrower will:
(i) in the case of any optional prepayment of the Tranche B Term Loans which the Borrower wishes to make, not later than 10 Business Days prior to the date on which the 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 notice (each, a "Prepayment Option Notice") as described below; and
(ii) in the case of any mandatory prepayment required to be made pursuant to Section 2.10, on the date specified in Section 2.10 for such prepayment, (A) 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 Prepayment Option Notice as described below and (B) deposit with the Administrative Agent the Mandatory Prepayment Amount. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be substantially in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the Prepayment Date the Tranche B Term Loans of such Lender by an amount equal to the portion of the Optional Prepayment Amount or Mandatory Prepayment Amount, as the case may be, indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. The "Prepayment Date" in respect of any Prepayment Option Notice shall be the date which is (i) in the case of a Prepayment Option Notice relating to an optional prepayment, the later of (A) five Business Days after the date of such Prepayment Option Notice and (B) the date on which the Borrower has advised the Administrative Agent that it wishes to make such optional prepayment and (ii) in the case of a Prepayment Option Notice relating to a mandatory prepayment, the date which is five Business Days after the date of such Prepayment Option Notice. On the Prepayment Date:
(i) in the case of any optional prepayment, the Borrower shall pay to the Administrative Agent the Optional Prepayment Amount, and the Administrative Agent shall (A) apply the Optional Prepayment toward prepayment of the outstanding Tranche B Term Loans in respect of which Lenders have accepted optional prepayment as described above and (B) apply the remaining portion of the Optional Prepayment Amount not accepted by the Tranche B Term Loan Lenders toward prepayment of the Tranche A Term Loans; and
(ii) in the case of any mandatory prepayment, the Administrative Agent shall (A) apply the Mandatory Prepayment Amount toward prepayment of the outstanding Tranche B Term Loans in respect of which Lenders have accepted mandatory prepayment as described above and (B) apply the remaining portion of the Mandatory Prepayment Amount not accepted by the Tranche B Term Loan Lenders toward prepayment of the Tranche A Term Loans.
(e) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City Chicago time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages Percentages, Tranche B Term Loan Percentages, or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each Subject to Section 2.18(c), each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the 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 paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of connection with any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of CreditLender.
(ed) The application Notwithstanding anything to the contrary in Sections 2.11 or 2.12 or this Section 2.18, 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 Loans under such Lender; accordingly, with respect to the amount of any Facility (including optional and prepayment described in Section 2.11 or mandatory prepayments) shall be made first, prepayment described in Section 2.12 that is allocated to Base Rate Loans under such Facility and second, to Eurocurrency Loans under such Facility. Each payment of the Tranche B Term Loans (except such amounts, the "Tranche B Prepayment Amount"), at any time when Tranche A Term Loans remain outstanding, the Borrower will, (i) in the case of Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest any optional prepayment which the Borrower wishes to make, not later than 10 Business Days prior to the date of on which the Borrower wishes to make such payment on the amount paid.
optional prepayment, and (fii) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal mandatory prepayment required to be made pursuant to Section 2.12, in lieu of applying such amount to the preceding two sentencesprepayment of Tranche B Term Loans as provided in Sections 2.12(d) and 2.18(b), interest thereon on the date specified in Section 2.12 for such prepayment, (x) deposit such amount in a cash collateral account opened by the Administrative Agent pending application of such amount in accordance with this Section 2.18(d), and (y) 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 Prepayment Option Notice as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be payable at include an offer by the then Borrower to prepay on the date (each a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable rate during to such extension.
Lender's Tranche B Term Loans. On the Prepayment Date, (gi) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make apply from the amount that would constitute its share of such Borrowing available deposited in the cash collateral account pursuant to the Administrative Agentthis Section 2.18(d), the Administrative Agent may assume aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which Tranche B Term Loan Lenders have accepted prepayment as described above (such Lender is making Lenders, the "Accepting Lenders"), and such amount available shall be applied to reduce the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available Tranche B Prepayment Amounts with respect 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 each Accepting Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall also be entitled apply from the amount deposited in the cash collateral account pursuant to recover this Section 2.18(d) an amount equal to 100% of the portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Loan Lenders, and such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior be applied to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights prepayment of the Administrative Agent or any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.Tranche A
Appears in 1 contract
Samples: Credit Agreement (Osullivan Industries Holdings Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans and Loans, each payment in respect of fees payable hereunder hereunder, and each payment in respect of Reimbursement Obligations, shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.10 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities in accordance with the Borrower's instructions. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the 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 paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders Lenders.
(d) Notwithstanding anything to the contrary in accordance Sections 2.9, 2.10 or 2.16, so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender may, at its option, decline up to 100% of the portion of any optional prepayment or mandatory payment applicable to the Tranche B Term Loans of such Lender; accordingly, with their respective Revolving Credit Commitments respect to the amount of any optional prepayment described in Section 2.9 or mandatory prepayment described in Section 2.10 that is allocated to Tranche B Term Loans (orsuch amounts, if the "Tranche B Prepayment Amount"), at any time when Tranche A Term Loans remain outstanding, the Borrower will, (i) in the case of any optional prepayment which the Borrower wishes to make, not later than 20 Business Days prior to the date on which the Borrower wishes to make such Revolving Credit Commitments shall have expired or been terminatedoptional prepayment, and (ii) in the case of any mandatory prepayment required to be made pursuant to Section 2.10, in accordance with lieu of applying such amount to the respective principal amounts prepayment of their outstanding Standby Tranche B Term Loans, as provided in paragraph Section 2.10(d), on the date specified in Section 2.10 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Lender a notice (each, a "Prepayment Option Notice") as described below. Each payment of principal of any Competitive Borrowing As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Lender a Prepayment Option Notice, which shall be allocated pro rata among in the Revolving Credit Lenders participating form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the Tranche B Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Borrowing in accordance with Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. On the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining Prepayment Date, (i) the Borrower shall pay to the Administrative Agent the aggregate available Revolving Credit Commitments amount necessary to prepay that portion of the Revolving Credit outstanding relevant Term Loans in respect of which Tranche B Lenders at any time have accepted prepayment as described above (such Lenders, the "Accepting Lenders") with such amount being applied to reduce the Tranche B Prepayment Amounts with respect to each Accepting Lender, and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing Borrower shall be deemed pay to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing an amount equal to the next higher or lower whole Dollar (or comparable unit portion of any applicable Alternative Currency) amount.
(d) Each payment in respect the Tranche B Prepayment Amount not accepted by the Accepting Lenders with such amount being applied to the prepayment of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Creditthe Tranche A Term Loans.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such 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 such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each payment (including each prepayment) on account of principal of the Tranche B Term Loans outstanding under the Term Loan Facility shall be allocated among the Tranche B Term Loan Lenders holding 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 Term Loans held by such Term Loan Lendersinstallments. Amounts paid repaid or prepaid in respect on account of the Tranche B Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with pro rata based on the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to the Issuing Lender. Each payment (including each Issuing Lender that issued such Letter prepayment) by the Borrower on account of Creditprincipal of and interest on Swingline Loans shall be made to the Swingline Lender.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without condition or deduction for any defense, recoupment, setoff or counterclaim 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 relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.2:00 p.m., New York City time, on any Business Day shall be deemed to have been on the next following Business DayDay and any applicable interest or fee shall continue to accrue. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received by wire transfer to such Lender’s Lending Office. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Borrower 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 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 commencing on the Borrowing Date until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower. Nothing herein shall limit the rights of the Borrower against any such defaulting Lender.
(g) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Section 2, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable 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.
(h) Unless The obligations of the Administrative Agent shall have been notified Lenders hereunder to make Loans and of the Revolving Lenders to fund participations in writing by any Borrower prior to the date Letters of Credit are several and not joint. The failure of any payment due Lender to be made by make any Borrower Loan or to fund any such participation on any date required hereunder that shall not relieve any other Lender of its corresponding obligation to do so on such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such paymentdate, 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 no Lender shall be entitled to recover, on demand, from each responsible for the failure of any other 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. so make its Loan or purchase its participation.
(i) Nothing herein shall be deemed to limit the rights of the Administrative Agent or obligate any Lender against to obtain the funds for any Borrower.
(i) This Section 2.18 shall not be construed Loan in any particular place or manner or to apply to any payment made constitute a representation by any Borrower pursuant to and Lender that it has obtained or will obtain the funds for any Loan in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24any particular place or manner.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Tranche B Term Loan Percentages, Additional Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated between the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities in accordance with the Borrower’s instructions. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the 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 paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.12:00 Noon, New York City time, on any Business Day shall be shall, in the discretion of the Administrative Agent, is deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such In the case of borrowings of Revolving Credit Loans or Additional Term Loans, if any Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, hereunder shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders. Each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Revolving Credit Commitments of the Lenders shall be made pro rata according to the Revolving Credit Percentages of the Revolving Credit Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each payment (including each prepayment) on account of principal of the Term Loans outstanding under the 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. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender Bank that issued such Letter of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency Eurodollar 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 accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars the relevant currency and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M., 12:00 Noon (New York City time, ) on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Rate Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Rate Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(f) Unless the Administrative Agent shall have been notified by any Lender prior to the applicable Borrowing Date that such Lender does not intend to make available to the Administrative Agent the amount of such Lender’s Loan requested on such Borrowing Date, the Administrative Agent may assume that such Lender has made such amount available to the Administrative Agent on such Borrowing Date and the Administrative Agent may, in its sole discretion, but shall not be obligated to, make available to the Borrower a corresponding amount on such Borrowing Date. If such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon, for each day from such Borrowing Date until the date such amount is paid to the Administrative Agent, at the customary rate set by the Administrative Agent for the correction of errors among banks for three (3) Business Days and thereafter at the Base Rate. In the event that (i) the Administrative Agent declines to make a requested amount available to the Borrower until such time as all applicable Lenders have made payment to the Administrative Agent, (ii) a Lender fails to fund to the Administrative Agent all or any portion of the Loans required to be funded by such Lender hereunder prior to the time specified in this Agreement and (iii) such Lender’s failure results in the Administrative Agent failing to make a corresponding amount available to the Borrower on the Borrowing Date, at Administrative Agent’s option, such Lender shall not receive interest hereunder with respect to the requested amount of such Lender’s Loans for the period commencing with the time specified in this Agreement for receipt of payment by the Borrower through and including the time of the Borrower’s receipt of the requested amount. If such Lender does not pay such corresponding amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent shall promptly notify the Borrower and the Borrower shall immediately pay such corresponding amount to the Administrative Agent together with interest thereon, for each day from such Borrowing Date until the date such amount is paid to the Administrative Agent, at the rate payable hereunder for Base Rate Loans for such Class of Loans. Nothing in this Section 2.15(f) shall be deemed to relieve any Lender from its obligation to fulfill its Commitments hereunder or to prejudice any rights that the Borrower may have against any Lender as a result of any default by such Lender hereunder.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(jh) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing borrowing by any Borrower from the Lenders hereunder, each payment by the Parent Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective applicable Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11 and any payment pursuant to Section 2.3) by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the Term Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied to scheduled installments of the Term Loans in direct order of maturity or as otherwise directed by the Parent Borrower. Each prepayment pursuant to Section 2.11 by the Parent Borrower on account of principal of and interest on a Class of Term Loans shall be made pro rata according to the respective principal amounts of such Class of Term Loans then held by the Company from Term Lenders and shall be applied to the installments of the Term Loan Lenders hereunderLoans as elected by the Parent Borrower. Each payment by the Parent Borrower pursuant to Section 2.3, including on the applicable Maturity Date for any Class of Term Loans, shall be made pro rata according to the respective outstanding principal amounts of such Class of Term Loan Percentages of Loans held by the Term Loan LendersLenders of such Class. Each payment of interest in respect 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 each payment in respect of fees payable hereunder interest on the Revolving Loans (other than Foreign Currency Loans) shall be applied to the amounts of such obligations owing to the Term Loan Lenders made pro rata according to the respective outstanding principal amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment in respect (including each prepayment) by any Borrower on account of Reimbursement Obligations in respect principal of and interest on any Letter of Credit Foreign Currency Loan shall be made pro rata according to each Issuing Lender that issued the respective outstanding principal amounts of such Letter of CreditForeign Currency Loan then held by the applicable Revolving Lenders.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment All payments (including prepayments) to be made by any Borrower after 1:00 P.M., New York City time, hereunder on any Business Day account of principal or interest on the Foreign Currency Loans shall be deemed to have been made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the next following Business Daydue date thereof to the Administrative Agent, for the account of the applicable Revolving Lenders, at the office, and prior to the time for payment for the relevant currency, set forth on the Administrative Schedule. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurocurrency Loans or Term Benchmark Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan or Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing DateLender, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable equal to Base the greater of (i) the daily average Federal Funds Effective Rate Loans under and (ii) a rate determined by the relevant FacilityAdministrative 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.
(hg) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any such Borrower hereunder that such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by 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 RateRate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any such Borrower.
(ih) This Section 2.18 If any Lender shall not be construed fail to apply to make any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments required to be made by it pursuant to non-Defaulting Lenders as opposed to Defaulting Lenders Section 2.7(b), 2.7(c), 2.18(f), 2.20(e), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
notwithstanding any contrary provision hereof, (ji) Upon receipt apply any amounts thereafter received by the Administrative Agent for the account of payments on behalf such Lender for the benefit of Lendersthe Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent shall promptly distribute such payments to the Lender or Lenders entitled thereto, in like funds as received by the Administrative Agentits discretion.
Appears in 1 contract
Samples: Credit Agreement (Tempur Sealy International, Inc.)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages Percentages, Tranche B Term Loan Percentages, or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each Subject to Section 2.18(c), each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the 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 paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of connection with any Letter of Credit shall be made to the Issuing Lender.
(d) Notwithstanding anything to the contrary in Sections 2.11 or 2.12 or this Section 2.18, so long as any Tranche A Term Loans are outstanding, each Issuing 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 issued is allocated to Tranche B Term Loans (such Letter amounts, the "Tranche B Prepayment Amount", at any time when Tranche A Term Loans remain outstanding, the Borrower will, (i) in the case of Creditany optional prepayment which the Borrower wishes to make, not later than 10 Business Days prior to the date on which the Borrower wishes to make such optional prepayment, and (ii) in the case of any mandatory prepayment required to be made pursuant to Section 2.12, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in Sections 2.12(d) and 2.18(b), on the date specified in Section 2.12 for such prepayment, (x) deposit such amount in a cash collateral account opened by the Administrative Agent pending application of such amount in accordance with this Section 2.18(d), and (y) 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 Prepayment Option Notice as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall include an offer by the Borrower to prepay on the date (each a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. On the Prepayment Date, (i) the Administrative Agent shall apply from the amount deposited in the cash collateral account pursuant to this Section 2.18(d) the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which Tranche B Term Loan Lenders have accepted prepayment as described above (each, an "Accepting Lender"), and such amount shall be applied to reduce the Tranche B Prepayment Amounts with respect to each Accepting Lender and (ii) the Administrative Agent shall apply from the amount deposited in the cash collateral account pursuant to this Section 2.18(d) an amount equal to 100% of the portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Loan Lenders and such amount shall be applied to the prepayment of the Tranche A Term Loans; provided that if the amount held in such cash collateral account is less than the total amount required to be paid pursuant to clauses (i) and (ii) of this sentence, the Borrower shall pay to the Administrative Agent, on the Prepayment Date, in immediately available funds an amount equal to the difference between such amounts. The Borrower hereby grants to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing security interest in all amounts at any time on deposit in such cash collateral account to secure all Obligations from time to time outstanding.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless Subject to Section 2.18(d), unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such 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 such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing reduction of Term the Revolving Credit Commitments of the Lenders shall be made pro rata according to the amounts of the Lenders' Commitment Percentages. Each payment (including each prepayment) by a Borrower on account of principal of and interest on Revolving Loans by the Company from the Term Loan Lenders hereunder, which are ABR Loans shall be made pro rata according to the respective Term Loan Percentages outstanding principal amounts of such ABR Loans then held by the Term Loan Lenders. Each payment (including each prepayment) by a Borrower on account of principal of and interest in respect of the Term on Revolving Loans and each payment in respect of fees payable hereunder shall which are Eurocurrency Loans designated by a Borrower to be applied to the amounts of such obligations owing to the Term Loan Lenders a particular Eurocurrency Borrowing shall be made pro rata according to the respective outstanding principal amounts of such Eurocurrency Loans then due and owing held by the Lenders; provided that with respect to a single Multicurrency Borrowing payments made in the specific currency of Eurocurrency Loans that are part of such Multicurrency Borrowing shall be applied pro rata according to the applicable Term Loan outstanding principal amount of all Eurocurrency Loans included in such Multicurrency Borrowing that are denominated in such currency; provided further that if payments designated by the Borrower for a particular Multicurrency Borrowing are not denominated in the appropriate currencies required by the second succeeding sentence such that each Lender's Revolving Credit Exposure will be reduced pro rata in accordance with the Lenders.
(b) ' Commitment Percentages, then, the Administrative Agent shall convert a portion of such payments into the currencies required to so reduce each Lender's Revolving Credit Exposure pro rata after application of all such payments. Each payment (including each prepayment) by a Borrower on account of principal of the Term and interest on Swingline Loans outstanding under the Term Loan Facility shall be allocated among the Term Loan Lenders holding such Term Loans made pro rata based on the principal amount of such Term Loans held by such Term Loan Lenders. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans according to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders Swingline Loans or participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lenderinterests therein, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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 may be, then held by accrued interest to the date of such payment on the amount paid.
(f) relevant Lenders. All payments (including prepayments) to be made by any a Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set off or counterclaim and shall be made prior to 1:00 P.M.10:00 a.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment OfficeAdministrative Agent's New York office specified in Section 10.01, in Dollars the currency in which the applicable Obligation is denominated and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, 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 Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day (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.
(gb) Unless Subject to Section 2.13, unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.14(b) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate ABR Loans under the relevant Facilityhereunder, on demand, from the relevant Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by , but without prejudice to any Borrower prior to the date of any payment due to be made by any Borrower hereunder right or claim that such Borrower will not make may have against 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any BorrowerLender.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Revolving Credit and Competitive Advance Facility Agreement (Crown Cork & Seal Co Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company any Borrower from the Term Loan Lenders hereunder, each payment by any Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata PRO RATA according to the respective Tranche B Term Loan Percentages, Multicurrency Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of interest in respect reduction of the Term Loans and each payment in respect of fees payable hereunder Total Multicurrency Commitments shall be applied to the amounts of such obligations owing the scheduled reductions of the Total Multicurrency Commitments pursuant to the Term Loan Lenders pro rata Section 4.3 PRO RATA according to the respective outstanding amounts then due and owing to the applicable Term Loan Lendersthereof.
(b) Each Except as provided in Section 6.11(d), each payment on account of principal (including each prepayment) of the Tranche B Term Loans outstanding under the Term Loan Facility shall be allocated among the Tranche B Term Loan Lenders holding such Tranche B Term Loans pro rata PRO RATA based on the principal amount of such Tranche B Term Loans held by such Tranche B Term Loan Lenders, and shall be applied to the installments of such Tranche B Term Loans PRO RATA based on the remaining outstanding principal amount of such installments. Amounts paid or prepaid in respect on account of the Tranche B Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by any Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans or the Commitment Fees, each reduction Multicurrency Loans shall be made PRO RATA according to the respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing intoLoans or Multicurrency Loans, or continuation ofas the case may be, a Standby Borrowing of any Type, shall be allocated pro rata among then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit. In relation to the payment of any amount of euro, such amount shall be made available to the Administrative Agent in immediately available, freely transferable, cleared funds to such account with such bank in Frankfurt am Main, Germany as the Administrative Agent shall from time to time nominate for this purpose.
(d) Notwithstanding anything to the contrary in Sections 6.5 or 6.11, so long as any Multicurrency Commitment is in effect, each Tranche B Term Loan Lender may, at its option, decline all or any portion of any mandatory payment applicable to the Tranche B Term Loan of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 6.5 that is allocated to Tranche B Term Loans (such amount, the "TRANCHE B PREPAYMENT AMOUNT"), at any time when any Multicurrency Commitments are in effect, Holdings will, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in paragraph Section 6.5(d), on the date specified in Section 6.5 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Loan Lender a notice (each, a "PREPAYMENT OPTION NOTICE") as described below. As promptly as practicable after receiving such notice from Holdings, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit H, and shall include an offer by Holdings to cause the Primary Borrower to prepay on the date (each a "PREPAYMENT DATE") that is 2 Business Days after the date of the Prepayment Option Notice, the Tranche B Term Loan of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loan. On the Prepayment Date, (i) the Primary Borrower shall pay to the Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding Tranche B Term Loans in respect of which Tranche B Term Loan Lenders have accepted prepayment as described above (such Lenders, the "ACCEPTING LENDERS"), and such amount shall be applied to reduce the Tranche B Prepayment Amounts, as applicable, with respect to each Accepting Lender, (ii) the Primary Borrower shall pay to the Administrative Agent an amount equal to 50% of the portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Loan Lenders (or, if the aggregate outstanding principal amount of Multicurrency Loans is less than such portion, such lesser amount), and the outstanding Multicurrency Loans shall be automatically prepaid by such amount (but without any corresponding permanent reduction in the Multicurrency Commitments), and (iii) the Primary Borrower shall be entitled to retain the remaining portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Loan Lenders.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M.12:00 Noon, New York City timelocal time in the city of the relevant Payment Office, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the relevant Payment Office, in Dollars (or in euro, in the case of payments of principal or interest in respect of Loans denominated in euro) and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.12:00 Noon, New York City timelocal time in the city of the relevant Payment Office, on any Business Day shall be deemed to have been made on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders entitled thereto promptly upon receipt in like funds as received. If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (iiin the case of amounts in Dollars) a or at the rate determined by the Administrative Agent as its cost of funding such amounts (in accordance with banking industry rules on interbank compensationthe case of amounts in euro), in each case for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount (but only to the extent theretofore made available by it to the relevant Borrower) with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant FacilityFacility (in the case of Loans denominated in Dollars) or the rate determined by the Administrative Agent as its cost of funding such amounts, PLUS the Applicable Margin for Eurocurrency Loans under such Facility (in the case of Loans denominated in euro) on demand, from the relevant Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the relevant Borrower prior to the date of any payment due to be made by any such Borrower hereunder that such the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata PRO RATA shares of a corresponding amount. If such payment is not made to the Administrative Agent by 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 daily average Federal Funds Effective RateRate (in the case of Loans denominated in Dollars) or the rate determined by the Administrative Agent as its cost of funding such amounts, PLUS the Applicable Margin for Eurocurrency Loans under such Facility (in the case of Loans denominated in euro). Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(h) In the event that (i) This a Borrower gives notice to the Administrative Agent that (A) such Borrower intends to make a borrowing under Section 2.18 4.2 of Multicurrency Loans denominated in euro, (B) such Borrower intends, on the requested Borrowing Date for such Eurocurrency Loans, to prepay under Section 6.4 Multicurrency Loans denominated in Dollars and (C) after giving effect to such borrowing and prepayment, the Available Multicurrency Commitment shall not be construed less than zero, and (ii) if (after giving effect to apply such requested Multicurrency Loans, but before giving effect to any payment made by any such prepayment) the Available Multicurrency Commitment shall be less than zero, the Administrative Agent may, in reliance on the foregoing notice, make available to such Borrower pursuant the amount of such requested Multicurrency Loans; PROVIDED, HOWEVER, that, in the event that such Borrower fails to and in accordance with make such prepayment on the express provisions of this Agreementrequested Borrowing Date, including differing payments to be such Borrower shall, without notice or demand, immediately prepay the Multicurrency Loans made to non-Defaulting Lenders as opposed it in an aggregate principal amount equal to Defaulting Lenders the amount by which the aggregate Multicurrency Extensions of Credit exceeds the aggregate Multicurrency Commitments then in effect, together with interest accrued to the date of such prepayment and payments made in connection with an assignment permitted any amounts payable under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.246.14.
(ji) Upon receipt A payment shall be deemed to have been made by the Administrative Agent on the date on which it is required to be made under this Agreement if the Administrative Agent has, on or before that date, taken all relevant steps to make that payment. With respect to the payment of payments on behalf of Lendersany amount denominated in euro, the Administrative Agent shall promptly distribute such payments not be liable to any Borrower or any of the Lender Lenders in any way whatsoever for any delay, or Lenders entitled theretothe consequences of any delay, in like funds as received the crediting to any account of any amount required by this Agreement to be paid by the Administrative AgentAgent if the Administrative Agent shall have taken all relevant steps to achieve, on the date required by this Agreement, the payment of such amount in immediately available, freely transferable, cleared funds in the euro unit to the account with the bank in the principal financial center in the Participating Member State which the relevant Borrower or, as the case may be, any Lender shall have specified for such purpose. In this paragraph (i), "all relevant steps" means all such steps as may be prescribed from time to time by the regulations or operating procedures of such clearing or settlement system as the Administrative Agent may from time to time determine for the purpose of clearing or settling payments of euro.
Appears in 1 contract
Samples: Credit Agreement (Six Flags Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company either Borrower (other than any Competitive Bid Borrowing) from the Term Loan Lenders hereunder, each payment by either Borrower on account of any facility fee and any reduction of the Commitments of the Lenders shall be made pro rata with respect to the Lenders according to the respective Tranche A Term Percentages, Tranche B Term Percentages, Tranche C Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment) by either Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective Term Loan Percentages of the Term Loan Lenders. Each payment of interest in respect outstanding principal amounts of the Term Loans then held by the Term Lenders. Amounts prepaid on account on the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by either Borrower on account of principal of and each payment in respect of fees payable hereunder interest on the Revolving Loans (other than any Competitive Bid Loan) shall be applied to the amounts of such obligations owing to the Term Loan Lenders made pro rata according to the respective outstanding principal amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment All payments of principal of any Competitive Bid Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Bid Loans comprising such Borrowing. Each payment All payments of interest on any Competitive Bid Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Bid Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any either Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without deduction, setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(ge) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate ABR Loans under the relevant Facility, on demand, from the BorrowerBorrowers.
(hf) Unless the Administrative Agent shall have been notified in writing by any the relevant Borrower prior to the date of any payment due to be made by any such Borrower hereunder that such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any either Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower or WSCA from the Term Loan Lenders hereunder, each payment by the Borrower or WSCA on account of any Acceptance Fee, commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Tranche D Term Loan Percentages, US Revolving Credit Percentages or Canadian Revolving Credit Percentages, as the case may be, of the Term Loan 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 or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each optional and mandatory payment on account (including prepayments) required by Section 2.12 to be applied to the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of principal Term Loans under such Facilities. Each payment (including each prepayment) of the Term Loans outstanding under the 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, first, in direct order of maturity for the four quarterly installments due immediately after the date of such prepayment and, second, with respect to any remainder, to the remaining installments of such Term Loans ratably in accordance with the then outstanding amounts thereof. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, Revolving Credit Loans shall be allocated among the Revolving Credit Facilities pro rata according to the respective outstanding principal amounts of Revolving Credit Loans under such Facilities. Each payment (including each payment of the Commitment Fees, each reduction prepayment) of the Revolving Credit Commitments and each conversion of Loans outstanding under any Borrowing into, or continuation of, a Standby Borrowing of any Type, Revolving Credit Facility shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if holding such Revolving Credit Commitments shall have expired or been terminated, in accordance with Loans pro rata according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing then held by such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Lenders. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans (and Canadian Prime Rate Loans, in the case of WSCA), under such Facility and and, second, to Eurocurrency Eurodollar Loans (and Bankers’ Acceptances, in the case of WSCA), 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 or Canadian Prime Rate Loans) shall be accompanied by accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any the Borrower and WSCA hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and counterclaim. All payments (including prepayments) to be made by the Borrower hereunder, whether on account of principal, interest, fees or otherwise 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.12:00 Noon, New York City time, on any Business Day shall be deemed to have been made on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. All payments (including prepayments) to be made by WSCA hereunder with respect to the Canadian Revolving Credit Facility, whether on account of principal, interest, fees or otherwise, shall be made prior to 12:00 Noon, Toronto time, on the due date thereof to the Canadian Agent, for the account of the relevant Lenders, at the Canadian Payment Office, in Canadian Dollars and in immediately available funds. Any payment made by WSCA after 12:00 Noon, Toronto time, on any Business Day shall be deemed to have been made on the next following Business Day. The Canadian Agent shall distribute such payments to the Canadian Revolving Credit Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency Loansthe Eurodollar Loans and Bankers’ Acceptances) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan or Bankers’ Acceptance becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gf) Unless the Administrative Agent or the Canadian Agent, as applicable, shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative applicable Agent, the Administrative such Agent may assume that such Lender is making such amount available to the Administrative such Agent, and the Administrative such Agent may, in reliance upon such assumption, make available to the Borrower or WSCA, if applicable, a corresponding amount. If such amount is not made available to the Administrative Agent or the Canadian Agent, as applicable, by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent or the Canadian Agent, as applicable, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate for amounts in Dollars and (ii) a the interbank offered rate determined quoted by the Administrative Canadian Agent for amounts in accordance with banking industry rules on interbank compensation, Canadian Dollars for the period until such Lender makes such amount immediately available to the Administrative such Agent. A certificate of the Administrative applicable Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative applicable Agent by such Lender within three Business Days after such Borrowing Date, the Administrative applicable Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the BorrowerBorrower or, with respect to the Canadian Revolving Credit Facility, WSCA.
(hg) Unless the Administrative Agent or the Canadian Agent, as applicable, shall have been notified in writing by any the Borrower or WSCA, as applicable, prior to the date of any payment due to be made by any the Borrower or WSCA hereunder that such the Borrower or WSCA, as applicable, will not make such payment to the Administrative applicable Agent, the Administrative applicable Agent may assume that the Borrower or WSCA, as applicable, is making such payment, and the Administrative applicable 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 applicable Agent by such the Borrower or WSCA within three Business Days after such due date, the Administrative applicable Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective RateRate for amounts in Dollars and the interbank offered rate quoted by the Canadian Agent for amounts in Canadian Dollars. Nothing herein shall be deemed to limit the rights of the Administrative Agent, the Canadian Agent or any Lender against any Borrowerthe Borrower or WSCA.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) (i) Each Borrowing borrowing of Term Loans by the Company Borrower from the Lenders hereunder shall be made pro rata according to the Revolving Credit Commitment Percentages of the Revolving Lenders in effect on the date of such borrowing.
(i) Each payment (including each prepayment) by the Borrower, on account of principal of and interest on the Term Loan Loans shall be made (i) pro rata with respect to the Term A Loans according to the respective outstanding principal amounts of the Term A Loans then held by the Term A Lenders, (ii) pro rata with respect to the Term B Loans according to the respective outstanding principal amounts of the Term B Loans then held by the Term B Lenders hereunder, and (iii) pro rata between the Term A Loans and the Term B Loans. The amount of each principal prepayment of the Term Loans shall be applied in inverse order of maturity to reduce the then remaining installments of the Term Loans. Amounts prepaid on account of the Term Loans may not be reborrowed.
(ii) [Reserved].
(iii) 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 Term Loan outstanding principal amounts of the Revolving Credit Loans then held by the 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 Term Loan Lenders. Each payment Lenders as of interest in respect such date.
(v) Any reduction of the Term Loans and each payment in respect Revolving Credit Commitments of fees payable hereunder the Lenders shall be applied to allocated by the amounts of such obligations owing to Administrative Agent among the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments Percentages of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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 on the date of such payment on the amount paidreduction.
(fvi) All payments (including prepayments) to be made by any the Borrower in respect of Loans hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 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 relevant LendersLenders entitled thereto, at the Payment OfficeAdministrative Agent’s office specified in subsection 11.2, in U.S. Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders entitled to receive the same promptly upon receipt in like funds as received.
(vii) If any payment hereunder (other than payments on Eurocurrency 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 Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof of such payment shall be extended to the next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gb) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing Date that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph subsection shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after of such Borrowing Date, the Administrative Agent Borrower shall also be entitled to recover repay such amount Lender’s share of such borrowing (together with interest thereon from the date such amount was made available to the Borrower) at the rate per annum applicable to Base Rate Prime Loans under hereunder to the relevant Facility, on demand, Administrative Agent not later than three (3) Business Days after receipt of written notice from the Borrower.Administrative Agent specifying such Lender’s share of such borrowing that was not made available to such Administrative Agent, and the Borrower shall have the right to pursue any remedies against such Lender for its failure to make its portion of such borrowing available.
(hc) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to a date on which a payment is due from the date of any payment due to be made by any Borrower hereunder that such the Borrower will not make such payment available to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such paymentamount available to the Administrative Agent, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the applicable Lenders their respective pro rata shares of a corresponding amount. If such payment amount is not made available to the Administrative Agent by such Borrower within three Business Days after such the required time on the due datedate therefor, each applicable Lender shall pay to the Administrative Agent shall be entitled to recoverAgent, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the a rate per annum equal to the daily average Federal Funds Effective RateRate for the period until such Lender makes such amount immediately available to the Administrative Agent. Nothing herein shall be deemed to limit the rights A certificate of the Administrative Agent or submitted to any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply with respect to any payment made by any Borrower pursuant to and in accordance with the express provisions of amounts owing under this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 subsection shall be subject to conclusive in the provisions absence of Section 2.22 and Section 2.24manifest error.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Napco Security Technologies, Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata PRO RATA according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 under principal amounts of the Term Loan Facility shall be allocated among Loans then held by the Term Loan Lenders holding such (except as otherwise provided in Section 2.16(d). The amount of each principal prepayment of the Term Loans pro rata shall be applied to reduce the then remaining installments of the Tranche A Term Loans and Tranche B Term Loans, as the case may be, PRO RATA based on upon the then remaining principal amount of such Term Loans held by such Term Loan Lendersthereof. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made PRO RATA according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment Notwithstanding anything to the contrary in Sections 2.9, 2.10 or 2.16, so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender may, at its option, decline up to 50% of the portion of any optional prepayment or mandatory prepayment applicable to the Tranche B Term Loans of such Lender; accordingly, with respect to the amount of any optional prepayment described in Section 2.9 or mandatory prepayment described in Section 2.10 that is allocated to Tranche B Term Loans (such amount, the "TRANCHE B PREPAYMENT AMOUNT"), at any time when Tranche A Term Loans remain outstanding, the Borrower will, (i) in the case of any optional prepayment which the Borrower wishes to make, not later than ten Business Days prior to the date on which the Borrower wishes to make such optional prepayment, and (ii) in the case of any mandatory prepayment required to be made pursuant to Section 2.10, in lieu of applying such amount to the prepayment of Tranche B Term Loans, as provided in paragraph Section 2.10(d), on the date specified in Section 2.10 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Loan Lender a notice (each, a "PREPAYMENT OPTION NOTICE") as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each a "PREPAYMENT DATE") that is five Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. On the Prepayment Date, (i) the Borrower shall pay to the Administrative Agent the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of Reimbursement Obligations in which Tranche B Term Loan Lenders have accepted prepayment as described above (such Lenders, the "ACCEPTING LENDERS"), and such amount shall be applied to reduce the Tranche B Prepayment Amounts with respect to each Accepting Lender, (ii) the Borrower shall pay to the Administrative Agent an amount equal to 50% of the portion of the Tranche B Prepayment Amount not accepted by the Accepting Lenders, and such amount shall be applied to the prepayment of the Tranche A Term Loans, and (C) the Borrower shall be entitled to retain the remaining 50% of the portion of the Tranche B Prepayment Amount not accepted by the Accepting Lenders. Each Term Loan Lender other than an Accepting Lender shall receive its portion of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Creditoptional prepayment or mandatory prepayment as set forth in Sections 2.9, 2.10 and 2.16.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.16(f) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata PRO RATA shares of a corresponding amount. If such payment is not made to the Administrative Agent by such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing by any Borrower from the Lenders hereunder, each payment by the Parent Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective applicable Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11 and any payment pursuant to Section 2.3) by the Parent Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding principal amounts of the applicable Term Loans then held by the applicable Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied to scheduled installments of the Term Loans in direct order of maturity or as otherwise directed by the Parent Borrower. Each prepayment pursuant to Section 2.11 by the Parent Borrower on account of principal of and interest on a Class of Term Loans shall be made pro rata according to the respective principal amounts of such Class of Term Loans then held by the Company from Term Lenders and shall be applied to the installments of the Term Loan Lenders hereunderLoans as elected by the Parent Borrower. Each payment by the Parent Borrower pursuant to Section 2.3, including on the applicable Maturity Date for any Class of Term Loans, shall be made pro rata according to the respective Term Loan Percentages of the Term Loan Lenders. Each payment of interest in respect of the Term Loans and each payment in respect of fees payable hereunder shall be applied to the outstanding principal amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each payment on account Class 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 the Term Lenders of such Term Loan LendersClass. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For Without limiting the avoidance generality of doubtthe foregoing, Section 2.18(a) and the provisions of this clause (b) do shall not prohibit non be construed to apply to any repayment of Escrow Debt made to the applicable Lenders that provided such Escrow Debt from the amounts held in the applicable escrow account, and such repaid amounts shall be made pro rata payments of differing Classes of Term Loans according to the extent otherwise permitted hereunderrespective outstanding principal amounts of the applicable Escrow Debt then held by the applicable Lender of such Escrow Debt.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by any Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Revolving Loans (other than Foreign Currency Loans, each payment of ) shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment in respect (including each prepayment) by any Borrower on account of Reimbursement Obligations in respect principal of and interest on any Letter of Credit Foreign Currency Loan shall be made pro rata according to each Issuing Lender that issued the respective outstanding principal amounts of such Letter of CreditForeign Currency Loan then held by the applicable Revolving Lenders.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M.p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment All payments (including prepayments) to be made by any Borrower after 1:00 P.M., New York City time, hereunder on any Business Day account of principal or interest on the Foreign Currency Loans shall be deemed to have been made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the next following Business Daydue date thereof to the Administrative Agent, for the account of the applicable Revolving Lenders, at the office, and prior to the time for payment for the relevant currency, set forth on the Administrative Schedule. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.8. If any payment hereunder (other than payments on the Eurocurrency Loans, RFR Loans or Term Benchmark Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan, RFR Loan or Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a the Borrowing Date (or, in the case of any Borrowing of RFR Loans or ABR Loans, prior to 3:00 p.m., New York City time, on the Borrowing Date) that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for each day from and including the period until date such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing DateLender, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable equal to Base the greater of (i) the daily average Federal Funds Effective Rate Loans under and (ii) a rate determined by the relevant FacilityAdministrative 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.
(hg) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any such Borrower hereunder that such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by 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 RateRate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against such Borrower.
(h) If any BorrowerLender shall fail to make any payment required to be made by it pursuant to Section 2.7(b), 2.7(c), 2.18(f), 2.20(e), 3.4(a) or 9.8, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
(i) This Section 2.18 shall not be construed to apply With respect to any payment made by that the Administrative Agent makes for the account of the Lenders or any Borrower pursuant Issuing Lender hereunder as to and in accordance with which the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 Administrative Agent determines (which determination shall be subject conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”):
(1) the applicable Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by such Borrower (whether or not then owed); or (3) the Administrative agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the applicable Issuing Lender, as the case may be, severally agrees to repay to the provisions Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or such Issuing Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of Section 2.22 payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and Section 2.24.
(j) Upon receipt a rate determined by the Administrative Agent of payments in accordance with banking industry rules 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 Agentinterbank compensation.
Appears in 1 contract
Samples: Credit Agreement (Tempur Sealy International, Inc.)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata PRO RATA according to the respective Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each Subject to Section 2.18(c), each payment (other than prepayments as set forth in Sections 2.18 (b), (c)) in respect of principal or interest in respect of the Term Loans Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata PRO RATA according to the respective amounts then due and owing to the applicable Term Loan 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 payment on account of principal of the Term Loans outstanding under the Term Loan Facility optional prepayment made pursuant to Section 2.11 and each mandatory prepayment required by Section 2.12 (other than prepayments required by Section 40 2.12(c)) shall be allocated among the Tranche B Term Loan Lenders holding such Tranche B Term Loans pro rata PRO RATA based on the principal amount of such Tranche B Term Loans held by such Tranche B Term Loan Lenders, and shall be applied to the installments of such Tranche B Term Loans PRO RATA based on the remaining outstanding principal amount of such installments. Each mandatory prepayment required by Section 2.12(c) shall be allocated among the Tranche B Term Loan Lenders holding such Tranche B Term Loans based upon the principal amount of such Tranche B Term Loans held by such Tranche B Term Loan Lenders, and shall be applied to the installments of such Tranche B Term Loans in inverse order of maturity. Amounts paid or prepaid in respect on account of the Tranche B Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made PRO RATA according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of connection with any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of CreditLender.
(e) 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 Eurocurrency 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.
(fd) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(ge) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hf) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such the Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata PRO RATA shares of a corresponding amount. If such payment is not made to the Administrative Agent by such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(g) Each prepayment of Tranche B Term Loans (other than (A) an optional prepayment pursuant to Section 2.11 made with proceeds not required to be used to prepay the Loans pursuant to Section 2.12(a) and (b) and (B) a mandatory prepayment pursuant to Section 2.12(c)) shall be accompanied by a prepayment premium equal to (i) This Section 2.18 shall not be construed to apply to any payment if such prepayment is made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject on or prior to the provisions first anniversary of Section 2.22 the Closing Date, 2.00% of the principal amount of such prepayment and Section 2.24(ii) if such prepayment is made after the first anniversary of the Closing Date and through the second anniversary of the Closing Date, 1.00% of the principal amount of such prepayment.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Tsi Finance Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Subject to Section 2.18(d), each mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the any Term Loan Facility shall be allocated among the Term Loan Lenders holding such Term Loans pro rata based on the respective principal amount amounts 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 paid repaid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of CreditLender.
(ed) The application Notwithstanding anything to the contrary in Sections 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 payment mandatory prepayment applicable to the Tranche B Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.12 that is allocated to Tranche B Term Loans under (such amounts, the "MANDATORY PREPAYMENT AMOUNT"), at any Facility time when Tranche A Term Loans remain outstanding, the Borrower will, on the date specified in Section 2.12 for such prepayment, (including optional i) give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and mandatory prepaymentsprovide to each Tranche B Term Loan Lender a notice (each, a "PREPAYMENT OPTION NOTICE") as described below and (ii) deposit with the Administrative Agent the Mandatory Prepayment Amount. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be made firstsubstantially in the form of Exhibit K, and shall include an offer by the Borrower to Base Rate prepay on the Prepayment Date (as defined below) the Tranche B Term Loans under of such Facility and second, Lender by an amount equal to Eurocurrency Loans under such Facility. Each payment the portion of the Loans (except Mandatory Prepayment Amount indicated in the case such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. The "Prepayment Date" in respect of Revolving Credit Loans that are Base Rate Loans) any Prepayment Option Notice shall be accompanied by accrued interest to the date which is five Business Days after the date of such payment on Prepayment Option Notice. On the amount paid.
(f) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing Prepayment Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at (A) apply the rate per annum applicable to Base Rate Mandatory Prepayment Amount toward prepayment of the outstanding Tranche B Term Loans under in respect of which Lenders have accepted mandatory prepayment as described above and (B) apply the relevant Facility, on demand, from remaining portion of the Borrower.
(h) Unless Mandatory Prepayment Amount not accepted by the Administrative Agent shall have been notified Tranche B Term Loan Lenders toward prepayment of the Tranche A Term Loans. The procedures described above in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 this paragraph shall not be required to, applicable in reliance upon such assumption, make available to the Lenders their respective pro rata shares case 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights prepayment in full of the Administrative Agent or any Lender against any Borrowerall Term Loans.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Day International Group Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing borrowing by the Borrower from the Lenders hereunder under the Revolving Facility, each payment by the Borrower on account of any commitment fee and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to Revolving Percentages of the relevant Lenders.
(b) Each prepayment by the Borrower on account of principal of the First Lien Term Loans by and the Company from the New First Lien Term Loan Lenders hereunder, Loans shall be made pro rata according to the respective outstanding principal amounts of such Loans then held by the applicable First Lien Term Loan Percentages Lenders and New First Lien Term Lenders (provided that such pro rata requirement shall not apply with respect to any First Lien Declined Amounts). The amount of each principal prepayment of the Term Loan Lenders. Each payment of interest in respect of the First Lien Term Loans and each payment in respect of fees payable hereunder New First Lien Term Loans shall be applied to reduce the then remaining installments of the First Lien Term Loans and New First Lien Term Loans, as the case may be, in direct chronological order of maturity based upon the respective then remaining principal amounts thereof. Each scheduled payment by the Borrower on account of such obligations owing to the principal of or interest on First Lien Term Loan Lenders Loans shall be made pro rata according to the respective outstanding principal amounts of the First Lien Term Loans then due and owing to held by the applicable First Lien Term Loan Lenders.
(b) . Each scheduled payment by the Borrower on account of principal of the or interest on New First Lien Term Loans outstanding under the Term Loan Facility shall be allocated among made pro rata according to the Term Loan Lenders holding such respective outstanding principal amounts of the New First Lien Term Loans pro rata based on the principal amount of such Term Loans then held by such the New First Lien Term Loan Lenders. Amounts paid prepaid or prepaid in respect repaid on account of any First Lien Term Loans or New First Lien Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or Each prepayment by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Second Lien Facility Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loanssuch Loans then held by the applicable Second Lien Lenders and New Second Lien Lenders (provided that such pro rata requirement shall not apply with respect to any Second Lien Declined Amounts). Each scheduled payment by the Borrower on account of principal of any Competitive Borrowing and interest on Second Lien Loans shall be allocated made pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with according to the respective outstanding principal amounts of their outstanding Competitive Second Lien Loans comprising such Borrowingheld by Second Lien Lenders. Each scheduled payment by the Borrower on account of principal of and interest on any Competitive Borrowing New Second Lien Loans shall be allocated made pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with according to the respective outstanding principal amounts of accrued and unpaid interest New Second Lien Loans held by New Second Lien Lenders. Amounts prepaid on their outstanding Competitive account of any Second Lien Facility Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall may not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountreborrowed.
(d) Each payment in respect (including each prepayment) by the Borrower on account of Reimbursement Obligations in respect principal of any Letter of Credit and interest on the Revolving Loans shall be made pro rata according to each Issuing Lender that issued such Letter the respective outstanding principal amounts of Creditthe Revolving Loans then held by the Revolving Lenders.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three (3) Business Days after such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate ABR Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such the Borrower within three (3) Business Days after such due date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Leucadia National Corp)
Pro Rata Treatment and Payments. (a) Each Borrowing by any Borrower from the Lenders hereunder, each payment by the Parent Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective applicable Term Percentages or Revolving Percentages, as the case may be, of the relevant Lenders.
(b) Each payment (including each prepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11 and any payment pursuant to Section 2.3) by the Parent Borrower on account of principal of and interest on Term Loans shall be made pro rata according to the respective outstanding principal amounts of the applicable Term Loans then held by the applicable Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be applied to scheduled installments of the Term Loans in direct order of maturity or as otherwise directed by the Parent Borrower. Each prepayment pursuant to Section 2.11 by the Parent Borrower on account of principal of and interest on a Class of Term Loans shall be made pro rata according to the respective principal amounts of such Class of Term Loans then held by the Company from Term Lenders and shall be applied to the installments of the Term Loan Lenders hereunderLoans as elected by the Parent Borrower. Each payment by the Parent Borrower pursuant to Section 2.3, including on the applicable Maturity Date for any Class of Term Loans, shall be made pro rata according to the respective Term Loan Percentages of the Term Loan Lenders. Each payment of interest in respect of the Term Loans and each payment in respect of fees payable hereunder shall be applied to the outstanding principal amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each payment on account Class 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 the Term Lenders of such Term Loan LendersClass. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For Without limiting the avoidance generality of doubtthe foregoing, Section 2.18(a) and the provisions of this clause (b) do shall not prohibit non be construed to apply to any repayment of Escrow Debt made to the applicable Lenders that provided such Escrow Debt from the amounts held in the applicable escrow account, and such repaid amounts shall be made pro rata payments of differing Classes of Term Loans according to the extent otherwise permitted hereunderrespective outstanding principal amounts of the applicable Escrow Debt then held by the applicable Lender of such Escrow Debt.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by any Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Revolving Loans (other than Foreign Currency Loans, each payment of ) shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment in respect (including each prepayment) by any Borrower on account of Reimbursement Obligations in respect principal of and interest on any Letter of Credit Foreign Currency Loan shall be made pro rata according to each Issuing Lender that issued the respective outstanding principal amounts of such Letter of CreditForeign Currency Loan then held by the applicable Revolving Lenders.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M.p.m., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment All payments (including prepayments) to be made by any Borrower after 1:00 P.M., New York City time, hereunder on any Business Day account of principal or interest on the Foreign Currency Loans shall be deemed to have been made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the next following Business Daydue date thereof to the Administrative Agent, for the account of the applicable Revolving Lenders, at the office, and prior to the time for payment for the relevant currency, set forth on the Administrative Schedule. The Administrative Agent shall distribute such payments to each relevant Lender promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.8. If any payment hereunder (other than payments on the Eurocurrency Loans, RFR Loans or Term Benchmark Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan, RFR Loan or Term Benchmark Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a the Borrowing Date (or, in the case of any Borrowing of RFR Loans or ABR Loans, prior to 3:00 p.m., New York City time, on the Borrowing Date) that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate per annum equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for each day from and including the period until date such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three Business Days after such Borrowing DateLender, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable equal to Base the greater of (i) the daily average Federal Funds Effective Rate Loans under and (ii) a rate determined by the relevant FacilityAdministrative 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.
(hg) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any such Borrower hereunder that such Borrower will not make such payment to the Administrative Agent, the Administrative Agent may assume that the such Borrower is making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by 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 RateRate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against such Borrower.
(h) If any BorrowerLender shall fail to make any payment required to be made by it pursuant to Section 2.7(b), 2.7(c), 2.18(f), 2.20(e), 3.4(a) or 9.8, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
(i) This Section 2.18 shall not be construed to apply With respect to any payment made by that the Administrative Agent makes for the account of the Lenders or any Borrower pursuant Issuing Lender hereunder as to and in accordance with which the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 Administrative Agent determines (which determination shall be subject conclusive absent manifest error) that any of the following applies (such payment referred to as the “Rescindable Amount”):
(1) the applicable Borrower has not in fact made such payment; (2) the Administrative Agent has made a payment in excess of the amount so paid by such Borrower (whether or not then owed); or (3) the Administrative agent has for any reason otherwise erroneously made such payment; then each of the Lenders or the applicable Issuing Lender, as the case may be, severally agrees to repay to the provisions Administrative Agent forthwith on demand the Rescindable Amount so distributed to such Lender or such Issuing Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of Section 2.22 payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and Section 2.24.
(j) Upon receipt a rate determined by the Administrative Agent of payments in accordance with banking industry rules 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 Agentinterbank compensation.
Appears in 1 contract
Samples: Credit Agreement (Tempur Sealy International, Inc.)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages, Delayed Draw Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans and Delayed Draw Term Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each payment on account of principal (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 pro rata to the installments of such Term Loans. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment prepayment) of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Delayed Draw Term Loans shall be allocated among the Delayed Draw Term Loan Lenders pro rata among based on the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (orprincipal amount of such Delayed Draw Term Loans held by such Delayed Draw Term Loan Lenders, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing and shall be allocated applied pro rata among to the Revolving Credit Lenders participating in installments of such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such BorrowingDelayed Draw Term Loans. Each payment of interest Amounts prepaid on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments account of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Delayed Draw Term Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall may not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountreborrowed.
(d) 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. Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(e) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.12:00 Noon, New York City time, on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 If at any time insufficient funds are received by and available to the Administrative Agent to pay amounts of principal, unreimbursed L/C Obligations, interest and fees then due hereunder, such funds shall not be construed to apply to any applied (i) first, towards payment made by any Borrower pursuant to of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the express provisions amounts of this Agreementinterest and fees then due to such parties, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions (ii) second, towards payment of Section 2.22 principal and Section 2.24unreimbursed L/C Obligations.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Term Loan Percentages or Revolving Percentages, as the case may be, of the relevant Lenders in the Class subject to reduction.
(b) Any prepayment of Term Loan Lenders. Each payment Loans pursuant to Section 2.10 or Section 2.11 shall be allocated among the outstanding Classes of interest Term Loans and Other Applicable Indebtedness on a pro rata basis (in respect accordance with the aggregate principal amount of outstanding borrowings of each such Class) (except that (i) an optional prepayment pursuant to Section 2.10 need only be made to the holders thereof pro rata according to the respective outstanding principal amounts of the Term Loans and Other Applicable Indebtedness of the applicable Class being prepaid, (ii) any prepayment of Term Loans with the Net Cash Proceeds of Credit Agreement Refinancing Debt shall be applied solely to each applicable Class of Refinanced Debt, (iii) any prepayment of Term Loans or Other Applicable Indebtedness with the Net Cash Proceeds of Debt pursuant to Section 2.11(a) may be applied to a Class or Classes of Term Loans or Other Applicable Indebtedness as directed by the Borrower and (iv) the amounts so allocable to Incremental Term Loans, Extended Term Loans, Other Term Loans or Refinancing Term Loans or Other Applicable Indebtedness of any Class may be applied to other borrowings of Term Loans, Incremental Term Loans, Extended Term Loans, Other Term Loans or Refinancing Term Loans or Other Applicable Indebtedness as provided in the applicable Increase Joinder, Extension Offer or Refinancing Amendment). Each payment in respect (including each prepayment) by the Borrower on account of fees payable hereunder principal of and interest on the Term Loans or Other Applicable Indebtedness of any Class shall be made to the holders thereof pro rata according to the respective outstanding principal amounts of the Term Loans of such Class then held by such holders. The amount of each principal prepayment of the Term Loans shall be applied to reduce the amounts then remaining installments of the Term Loans. Amounts prepaid on account of the Term Loans may not be reborrowed. Notwithstanding any other provision of this Section 2.17(b), a Lender may, at its option, and if agreed by the Borrower, in connection with any prepayment of Term Loans pursuant to Section 2.10 or Section 2.11, exchange such obligations owing to Lender’s portion of the Term Loan to be repaid for Debt of the Borrower, in lieu of such Lender’s pro rata portion of such prepayment (and any such Term Loans so exchanged shall be deemed repaid for all purposes under the Loan Documents).
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Revolving Loans shall be made to the Revolving Lenders pro rata according to the respective outstanding principal amounts of the Revolving Loans then due and owing to held by the applicable Term Loan relevant Revolving 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the applicable Administrative Agent, for the account of the relevant Lenders, at the Payment OfficeFunding Office for the applicable currency, in Dollars the currency in which the applicable Loan was made and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The applicable Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(ge) Unless the applicable Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the applicable Administrative Agent, the such Administrative Agent may assume that such Lender is making such amount available to the such Administrative Agent, and the such Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the applicable Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the applicable Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the applicable Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the applicable Administrative Agent. A certificate of the applicable Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the applicable Administrative Agent by such Lender within three Business Days after such Borrowing Date, the applicable Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate ABR Loans under the relevant Facility, Revolving Facility on demand, from the Borrower.
(hf) Unless the applicable Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such the Borrower will not make such payment to the applicable Administrative Agent, the such Administrative Agent may assume that the Borrower is making such payment, and the applicable 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 applicable Administrative Agent by such the Borrower within three Business Days after such due date, the applicable Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which that 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 applicable Administrative Agent or any Lender against any the Borrower.
(ig) This Section 2.18 If any Lender shall not be construed fail to apply to make any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments required to be made by it pursuant to non-Defaulting Lenders Section 2.5, Section 2.7(c), Section 3.4, Section 3.5 or Section 11.5(d), then the applicable Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by such Administrative Agent for the account of such Lender for the benefit of such Administrative Agent, the Swingline Lender or such Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, or (ii) until such failure to make payment has been cured, hold any such amounts in a segregated account as opposed to Defaulting Lenders cash collateral for, and payments made application to, any future funding obligations of such Lender under any such Section, in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions case of Section 2.22 each of clauses (i) and Section 2.24.
(jii) Upon receipt above, in any order as determined by the applicable 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 Agentits discretion.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans payment (including each prepayment) by the Company from the Term Loan Lenders hereunder, 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 Loan 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 in direct order of maturity. Amounts prepaid on account of the Term Loans may not be reborrowed. Each payment of principal and interest in respect of any optional prepayment of Revolving Credit Loans or Multicurrency Loans shall be made pro rata according to the amounts then due and owing to the respective Revolving Lender or Multicurrency Lender, as the case may be.
(b) Except as provided in subsection 2.19, each borrowing by the Borrower of Revolving Credit Loans from the Revolving Lenders hereunder shall be made pro rata according to the Funding Commitment Percentages of the Term Loan Revolving Lenders in effect on the date of such borrowing. Each payment by the Borrower on account of any facility fee hereunder and any reduction of the Revolving Credit Commitments of the Revolving Lenders shall be allocated by the Administrative Agent among the Revolving Lenders pro rata according to the Revolving Credit Commitment Percentages of the Lenders. Except as provided in subsection 2.19, each payment (including each prepayment) by the Borrower on account of principal on the Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Revolving Credit Loans then due and owing to the Revolving Lenders. Each payment by the Borrower of interest in respect of the Term Revolving Credit Loans and each payment in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Revolving Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 Revolving Lenders. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunderhereunder in respect of amounts denominated in Dollars, whether on account of principal, interest, fees or otherwise, shall be made without setoff set off or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment OfficeAdministrative Agent’s office specified in subsection 13.2, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business Dayrelevant Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans or Multicurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Eurocurrency Eurodollar Loan or a Multicurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof of such payment shall be extended to the next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day.
(c) Each borrowing of Multicurrency Loans by the Borrower shall be made, and any reduction of the Multicurrency Commitments shall be allocated by the Administrative Agent, pro rata according to the Multicurrency Commitment Percentages of the Multicurrency Lenders. In Each payment (including each prepayment) by the case of any extension of any payment Borrower on account of principal pursuant on Multicurrency Loans shall be allocated by the Administrative Agent pro rata according to the preceding two sentences, respective principal amounts of the Multicurrency Loans then due and owing by the Borrower to each Multicurrency Lender. Each payment by the Borrower of interest thereon in respect of the Multicurrency Loans shall be payable allocated by the Administrative Agent to the amounts of such obligations owing to the Multicurrency Lenders pro rata according to the respective amounts then due and owing to the Multicurrency Lenders. All payments (including prepayments) to be made by the Borrower on account of Multicurrency Loans hereunder, whether on account of principal, interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made at or before the payment time for the currency of such Multicurrency Loan from time to time specified by the Administrative Agent by notice to the Multicurrency Lenders and the Borrower, on the due date thereof to the Administrative Agent, for the account of the Multicurrency Lenders, at the payment office for the currency of such Multicurrency Loan from time to time specified by the Administrative Agent by notice to the Multicurrency Lenders and the Borrower, in the currency of such Multicurrency Loan and in immediately available funds. The Administrative Agent shall distribute such payments to the Multicurrency Lenders entitled to receive the same promptly upon receipt in like funds as received; provided that the Administrative Agent will provide funds in the then applicable rate during such extensionDollar Equivalent thereof (including an exchange fee and other normal and customary fees for providing this service as determined by the Administrative Agent in its sole discretion) to those Multicurrency Lenders that had funded the Revolving Credit Loans with the Dollar Equivalent as provided in subsection 2.17.
(gd) Notwithstanding the foregoing, payments and Commitment reductions may be made on a non pro rata basis under this Agreement in order to give effect to subsection 2.22 and 2.23.
(e) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate (in the case of a borrowing of Term Loans, Revolving Credit Loans or CAF Advances denominated in Dollars) and (ii) a rate determined by the Administrative Agent Agent’s reasonable estimate of its average daily cost of funds (in accordance with banking industry rules on interbank compensationthe case of a borrowing of Multicurrency Loans or CAF Advances denominated in a currency other than Dollars), in each case for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph subsection shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at equal to (i) the rate per annum applicable to Base Rate ABR Loans under hereunder (in the relevant Facilitycase of a borrowing of Term Loans, Revolving Credit Loans or CAF Advances or CAF Advances denominated in Dollars) and (ii) the Administrative Agent’s reasonable estimate of its average daily cost of funds plus the Applicable Margin applicable to Multicurrency Loans (in the case of a borrowing of Multicurrency Loans or CAF Advances denominated in a currency other than Dollars), on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages, Tranche C Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 under principal amounts of the Term Loan Facility shall be allocated among Loans then held by the Term Loan Lenders holding such (except as otherwise provided in Section 2.16(d)). The amount of each principal prepayment of the Term Loans pro rata based on shall be applied to reduce the principal amount then remaining installments of such the Tranche A Term Loans, Tranche B Term Loans held by such and Tranche C Term Loan LendersLoans, as the case may be, in the inverse order of maturity. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each Notwithstanding anything to the contrary in Section 2.10 or elsewhere in this Section 2.16, so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender and each Tranche C Term Loan Lender may, at its option, decline the portion of any optional prepayment or mandatory payment applicable to the Tranche B Term Loans or, as the case may be, Tranche C Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.10 that is allocated to Tranche B Term Loans or, as the case may be, Tranche C Term Loans (such amount, the "Tranche B Prepayment Amount" or, as the case may be, the "Tranche C Prepayment Amount"), the Borrower will, in lieu of applying such amount to the prepayment of Tranche B Term Loans or, as the case may be, Tranche C Term Loans, as provided in paragraph Section 2.10(d), on the date specified in Section 2.10 for such prepayment, give the Agent telephonic notice (promptly confirmed in writing) requesting that the Agent prepare and provide to each Tranche B Term Loan Lender and each Tranche C Term Loan Lender a notice (each, a "Prepayment Option Notice") as described below. As promptly as practicable after receiving such notice from the Borrower, the Agent will send to each Tranche B Term Loan Lender and each Tranche C Term Loan Lender a Prepayment Option Notice, which shall be in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each, a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the Tranche B Term Loans or, as the case may be, Tranche C Term Loans of such Lender by an amount equal to the Tranche B Prepayment Amount or, as the case may be, Tranche C Prepayment Amount indicated in such Lender's Prepayment Option Notice. On the Prepayment Date, (A) the Borrower shall pay to the Agent the aggregate amount necessary to prepay that portion of the outstanding Tranche B Term Loans and Tranche C Term Loans in respect of Reimbursement Obligations in respect of any Letter of Credit which Tranche B Term Loan Lenders and Tranche C Term Loan Lenders have accepted prepayment as described above (such Lenders, the "Accepting Lenders"), and such amount shall be made applied to reduce the Tranche B Prepayment Amounts and the Tranche C Prepayment Amounts, respectively, with respect to each Issuing Accepting Lender that issued and (B) the Borrower shall pay to the Agent an amount equal to the portion of the Tranche B Prepayment Amount and the Tranche C Prepayment Amount not accepted by the Accepting Lenders, and such Letter amount shall be applied to the prepayment of Creditthe Tranche A Term Loans.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph Section 2.16(f) shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate ABR Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such 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 such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (ai) Each Borrowing Except as provided in subsection 2.5, each borrowing of Term U.S. Revolving Credit Loans by the Company U.S. Borrower from the Term Loan U.S. Revolving Lenders hereunder, hereunder shall be made pro rata according to the respective U.S. Dollar Funding Commitment Percentages of the U.S. Revolving Lenders in effect on the date of such borrowing. Each borrowing of Term Loan Loans by the U.S. Borrower from the Term Lenders hereunder shall be made pro rata according to the Term Percentages of the Term Loan LendersLenders in effect on the date of such borrowing. Each payment by the U.S. Borrower on account of interest in respect of the Term Loans and each payment in respect of fees payable any facility fee hereunder shall be applied allocated by the General Administrative Agent among the U.S. Revolving Lenders in accordance with the respective amounts which such U.S. Revolving Lenders are entitled to receive pursuant to subsection 9.5(a). Any reduction of the amounts U.S. Revolving Credit Commitments of such obligations owing to the Term Loan U.S. Revolving Lenders shall be allocated by the General Administrative Agent among the U.S. Revolving Lenders pro rata according to the U.S. Revolving Credit Commitment Percentages of the U.S. Revolving Lenders. Except as provided in subsection 2.5 or subsection 9.4(d), each payment (other than any optional prepayment) by the U.S. Borrower on account of principal of or interest on the U.S. Revolving Credit Loans or the CAF Advances shall be allocated by the General Administrative Agent pro rata according to the respective principal amounts thereof then due and owing to each U.S. Revolving Lender. Each optional prepayment by the applicable Term Loan Lenders.
(b) Each payment U.S. Borrower on account of principal of or interest on the U.S. Revolving Credit Loans shall be allocated by the General Administrative Agent pro rata according to the respective outstanding principal amounts thereof. Each payment (including any optional prepayment) by the U.S. Borrower on account of principal of or interest on the Term Loans outstanding under the Term Loan Facility shall be allocated among by the Term Loan Lenders holding such Term Loans General Administrative Agent pro rata based on the principal amount of such Term Loans held by such Term Loan Lenders. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans according to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued thereof then due and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made owing to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency Loans under such FacilityTerm Lender. 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.
(f) All payments (including prepayments) to be made by the U.S. Borrower hereunder (other than with respect to Multicurrency Loans), whether on account of principal, interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made prior to 12:00 Noon, New York City time, on the due date thereof to the General Administrative Agent, for the account of the U.S. Revolving Lenders or the Term Lenders, as applicable, at the General Administrative Agent's office specified in subsection 17.2, in Dollars and in immediately available funds. The General Administrative Agent shall distribute such payments to the Lenders entitled to receive the same promptly upon receipt in like funds as received.
(ii) Each borrowing of Canadian Revolving Credit Loans by the Canadian Borrower from the Canadian Lenders hereunder shall be made, and any reduction of the Canadian Revolving Credit Commitments of the Canadian Lenders shall be allocated by the Canadian Administrative Agent, pro rata according to the Canadian Revolving Credit Commitment Percentages of the Canadian Lenders. Except as provided in subsection 9.4(d), each payment (other than any optional prepayment) by the Canadian Borrower on account of principal of or interest on the Canadian Revolving Credit Loans shall be allocated by the Canadian Administrative Agent pro rata according to the respective principal amounts of the Canadian Revolving Credit Loans then due and owing to each Canadian Lender. Each optional prepayment by the Canadian Borrower on account of principal of or interest on the Canadian Revolving Credit Loans shall be allocated by the Canadian Administrative Agent pro rata according to the respective outstanding principal amounts thereof. All payments (including prepayments) to be made by the Canadian Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 1:00 P.M.12:00 Noon, New York City Toronto time, on the due date thereof to the Canadian Administrative Agent, for the account of the relevant Canadian Lenders, at the Payment OfficeCanadian Administrative Agent's office specified in subsection 17.2, in Canadian Dollars and in immediately available funds. Any The Canadian Administrative Agent shall distribute such payments to the Canadian Lenders entitled to receive the same promptly upon receipt in like funds as received.
(iii) Each borrowing of Multicurrency Loans by the U.S. Borrower or any Foreign Subsidiary Borrower shall be made, and any reduction of the Multicurrency Commitments shall be allocated by the General Administrative Agent, pro rata according to the Multicurrency Commitment Percentages of the Multicurrency Lenders. Except as provided in subsection 9.4(d), each payment (including each prepayment) by the U.S. Borrower or a Foreign Subsidiary Borrower on account of principal of and interest on Multicurrency Loans shall be allocated by the General 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 any a Borrower after 1:00 P.M.hereunder in respect of Multicurrency Loans, New York City timewhether on account of principal, interest, fees or otherwise, shall be made without set-off or counterclaim and shall be made at or before the payment time for the currency of such Multicurrency Loan set forth in the Administrative Schedule, on any Business Day the due date thereof to the General Administrative Agent, for the account of the Multicurrency Lenders, at the payment office for the currency of such Multicurrency Loan set forth in the Administrative Schedule, in the currency of such Multicurrency Loan and in immediately available funds. The General Administrative Agent shall be deemed distribute such payments to have been on the next following Business Day. Multicurrency Lenders entitled to receive the same promptly upon receipt in like funds as received.
(iv) If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans, the Swing Line Multicurrency Loans, the Multicurrency Loans and the Acceptances) becomes due and payable on a day other than a Business Day, the maturity of such payment shall be extended to the next succeeding Business Day, and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension. If any payment on a Eurocurrency Eurodollar Loan, Swing Line Multicurrency Loan or a Multicurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof of such payment shall be extended to the next succeeding Business Day (and, with respect to payments of principal, interest thereon shall be payable at the then applicable rate during such extension) unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extensionAcceptances may only mature on a Business Day.
(gb) Unless A payment in euro shall be deemed to have been made by the General Administrative Agent on the date on which it is required to be made under this Agreement if the General Administrative Agent has, on or before that date, taken all relevant steps to make that payment. With respect to the payment of any amount denominated in euro, the General Administrative Agent shall not be liable to any Borrower or any of the Lenders in any way whatsoever for any delay, or the consequences of any delay, in the crediting to any account of any amount required by this Agreement to be paid by the General Administrative Agent if the General Administrative Agent shall have been notified taken all relevant steps to achieve, on the date required by this Agreement, the payment of such amount in writing by immediately available, freely transferable, cleared funds in the euro unit to the account with the bank in the principal financial center in the Participating Member State which the relevant Borrower or, as the case may be, any Lender prior shall have specified for such purpose. In this paragraph (b), "all relevant steps" means all such steps as may be prescribed from time to a Borrowing that such Lender will not make time by the amount that would constitute its share regulations or operating procedures of such Borrowing available to clearing or settlement system as the Administrative Agent, the General Administrative Agent may assume that such Lender is making such amount available from time to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, determine for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate purpose of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence clearing or settling payments of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrowereuro.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company a Borrower from the Term Loan Lenders hereunder, each payment by a Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each Subject to Section 2.18(c), each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 payment on account of principal (including each prepayment) of the Tranche B Term Loans outstanding under the any Tranche B Term Loan Facility shall be allocated among the Tranche B Term Loan Lenders holding such Tranche B Term Loans pro rata based on the principal amount of such Tranche B Term Loans held by such Tranche B Term Loan Lenders, and shall be applied to the installments of such Tranche B Term Loans pro rata based on the remaining outstanding principal amount of such installments. Amounts paid or prepaid in respect on account of the Tranche B Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by a Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of connection with any Letter of Credit shall be made to the Issuing Lender.
(d) Notwithstanding anything to the contrary in Section 2.12 or this Section 2.18, each Issuing Tranche B Term Loan Lender may, at its option, decline all or any portion of any mandatory payment applicable to the Tranche B Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.12 that issued is allocated to Tranche B Term Loans (such Letter amounts, the "Tranche B Prepayment Amount"), the Borrowers will, in lieu of Creditapplying such amount to the prepayment of Tranche B Term Loans, as provided in Sections 2.12(e) and 2.18(b), on or up to 10 Business Days prior to the date specified in Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Loan Lender a Prepayment Option Notice as described below and, on the date specified in Section 2.12 for such prepayment, deposit such amount in a cash collateral account opened by the Administrative Agent pending application of such amount in accordance with this Section 2.18(d). As promptly as practicable after receiving such notice from the Borrowers, the Administrative Agent will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall include an offer by the Borrowers to prepay on the date (each a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Tranche B Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. On the Prepayment Date, (i) the Administrative Agent shall apply from the amount deposited in the cash collateral account pursuant to this Section 2.18(d) the aggregate amount necessary to prepay that portion of the outstanding relevant Tranche B Term Loans in respect of which Tranche B Term Loan Lenders have accepted prepayment as described above, and such amount shall be applied to reduce the Tranche B Prepayment Amounts with respect to each Accepting Lender, and (ii) the Administrative Agent shall pay to the applicable Borrower from the amount deposited in such cash collateral account the remaining portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Loan Lenders; provided that if the amount held in such cash collateral account is less than the total amount required to be paid pursuant to clause (i) of this sentence, the Borrowers shall pay to the Administrative Agent, on the Prepayment Date, in immediately available funds an amount equal to the difference between such amounts. The Borrowers hereby grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing security interest in all amounts at any time on deposit in such cash collateral account to secure all Obligations from time to time outstanding.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower the Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M.1:00pm, New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the BorrowerBorrowers.
(hg) Unless Subject to Section 2.18(d), unless the Administrative Agent shall have been notified in writing by any Borrower the Borrowers prior to the date of any payment due to be being made by any Borrower hereunder that such Borrower the Borrowers will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is Borrowers are making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by such Borrower the Borrowers within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrowerthe Borrowers.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company US Borrower or the Canadian Borrower from the Term Loan Lenders hereunder, commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages, US Revolving Credit Percentages or Canadian Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders; provided, that for purposes of determining the ratable shares of the US Revolving Credit Lenders in any funding of US Revolving Credit Loans or participations in Swing Line Loans or US L/C Obligations, the amount of the US Revolving Credit Commitment of any US Revolving Credit Lender that is also a Canadian Revolving Credit Lender shall be reduced by the amount of its Canadian Revolving Extensions of Credit then outstanding, converted to Dollars at the Exchange Rate. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each payment (including each prepayment) by the US Borrower 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 each prepayment shall, at the US Borrower’s option, be applied to the installments of such Term Loans either (i) pro rata based on the remaining outstanding principal amount of such installments or (ii) first, in direct order, to the next four succeeding installments of such Term Loans and then pro rata to the remaining outstanding principal amount of such installments. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment prepayment) of the Commitment Fees, each reduction of the US Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated pro rata among the US Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with pro rata according to the respective outstanding principal amounts of their outstanding Standby Loans)the US Revolving Credit Loans then held by such US Revolving Credit Lenders. Each payment (including each prepayment) of principal of any Competitive Borrowing the Canadian Revolving Credit Loans shall be allocated pro rata among the Canadian Revolving Credit Lenders participating in such Borrowing in accordance with pro rata according to the respective outstanding principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Canadian Revolving Credit Loans as part of then held by such Competitive Borrowing) pro rata in accordance with such respective Canadian Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans (and Canadian Prime Rate Loans, in the case of the Canadian Borrower), under such Facility and and, second, to Eurocurrency Eurodollar Loans (and Banker’s Acceptances, in the case of the Canadian Borrower) under such Facility. Each payment of the Loans (except in the case of Revolving Credit Loans that are Base Rate Loans or Canadian Prime Rate Loans and Swing Line Loans) shall be accompanied by accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any the US Borrower and the Canadian Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and counterclaim. All payments (including prepayments) to be made by the US Borrower hereunder, whether on account of principal, interest, fees or otherwise 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any a Borrower after 1:00 P.M.12:00 Noon, New York City time, on any Business Day shall be deemed to have been made on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. All payments (including prepayments) to be made by the Canadian Borrower hereunder with respect to the Canadian Revolving Credit Facility, whether on account of principal, interest, fees or otherwise, shall be made prior to 12:00 Noon, Toronto time, on the due date thereof to the Canadian Agent, for the account of the relevant Lenders, at the Canadian Payment Office, in Canadian Dollars or Dollars (based on the currency applicable to such amount) and in immediately available funds. Any payment made by the Canadian Borrower after 12:00 Noon, Toronto time, on any Business Day shall be deemed to have been made on the next following Business Day. The Canadian Agent shall distribute such payments to the Canadian Revolving Credit Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency Loansthe Eurodollar Loans and Banker’s Acceptances) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan or Banker’s Acceptance becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gf) Unless the Administrative Agent or the Canadian Agent, as applicable, shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent or the Canadian Agent, the Administrative as applicable, such Agent may assume that such Lender is making such amount available to the Administrative such Agent, and the Administrative such Agent may, in reliance upon such assumption, make available to the US Borrower or the Canadian Borrower, as applicable, a corresponding amount. If such amount is not made available to the Administrative Agent Agent, or the Canadian Agent, as applicable, by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, or the Canadian Agent, as applicable, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate for amounts in Dollars and (ii) a the interbank offered rate determined quoted by the Administrative Canadian Agent for amounts denominated in accordance with banking industry rules on interbank compensation, Canadian Dollars for the period until such Lender makes such amount immediately available to the Administrative such Agent. A certificate of the Administrative Agent or the Canadian Agent, as applicable, submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative applicable Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the US Borrower or, the Canadian Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Canadian Prime Rate Loans under the relevant Facility, on demand, from the Canadian Borrower.
(hg) Unless the Administrative Agent Agent, or the Canadian Agent, as applicable, shall have been notified in writing by any Borrower the US Borrower, or the Canadian Borrower, as applicable, prior to the date of any payment due to be made by any such Borrower hereunder that such Borrower will not make such payment to the Administrative applicable Agent, the Administrative applicable Agent may assume that the Borrower such Borrower, is making such payment, and the Administrative applicable 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 applicable Agent by such the US Borrower or the Canadian Borrower, as applicable, within three Business Days after such due date, the Administrative applicable Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective RateRate for amounts in Dollars and the interbank offered rate quoted by the Canadian Agent for amounts in Canadian Dollars. Nothing herein shall be deemed to limit the rights of the Administrative Agent, the Canadian Agent or any Lender against any the US Borrower or the Canadian Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrowers from the Term Loan Lenders hereunder, each payment by the Borrowers on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.10 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities, except in the case of the prepayment and replacement of the Term Loans under any Facility in the circumstances described in the last paragraph of Section 10.1. Each payment (including each prepayment) on account of principal of the Term Loans outstanding under the 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 paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided set forth in Section 2.25, each Standby Borrowing2.6, each payment or prepayment (including each prepayment) by a Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among according to the respective outstanding principal amounts of the Revolving Credit Loans then held by the Revolving Credit Lenders in accordance with their respective (and pro rata to the R-1 Revolving Credit Commitments (or, if such Loans and R-2 Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) based on the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowingamounts thereof). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any Borrower the Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower the Borrowers after 1:00 P.M.12:00 Noon, New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the relevant Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing made available by the Administrative Agent to the relevant Borrower is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the BorrowerBorrowers.
(hg) Unless the Administrative Agent shall have been notified in writing by any Borrower the Borrowers prior to the date of any payment due to be made by any Borrower the Borrowers hereunder that such Borrower the Borrowers will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is Borrowers are making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by such Borrower 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 any Borrowerthe Borrowers.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(jh) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrowers from the Term Loan Lenders hereunder, each payment by the Borrowers on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages Commitments, Tranche B Term Loan Commitments, Revolving Credit Commitments or commitments under the Incremental Facility (if any), as the case may be, of the Term Loan Lendersrelevant Lenders or Incremental Facility lenders (if any), as the case may be. Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans and 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 Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.11 to be applied to Term Loans shall be allocated between the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of the Term Loans under such Facilities. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the 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 paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrowers on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders Lenders.
(d) Notwithstanding anything to the contrary in accordance Sections 2.10, 2.11 or 2.17, so long as any Tranche A Term Loans are outstanding, each Tranche B Term Loan Lender and each Incremental Facility B Lender (if any) may, at its option, decline all or any portion of any optional prepayment or mandatory payment applicable to the Tranche B Term Loans or Incremental B Term Loans (if any) of such Tranche B Term Loan Lender or Incremental Facility B Lender, as the case may be; accordingly, with their respective Revolving Credit Commitments respect to the amount of any optional prepayment described in Section 2.10 or mandatory prepayment described in Section 2.11 that is allocated to Tranche B Term Loans (orsuch amount, the "Tranche B Prepayment Amount") or Incremental B Term Loans (if any) (such Revolving Credit Commitments shall have expired or been terminatedamount, the "Incremental Facility B Prepayment Amount") at any time when Tranche A Term Loans remain outstanding, the Borrowers will, (i) in the case of any optional prepayment which the Borrowers wish to make, not later than twenty Business Days prior to the date on which the Borrowers wish to make such optional prepayment, and (ii) in the case of any mandatory prepayment required to be made pursuant to Section 2.11, in accordance with lieu of applying such amount to the respective principal amounts prepayment of their outstanding Standby LoansTranche B Term Loans or Incremental B Term Loans (if any), as provided in paragraph Section 2.11(d), on the date specified in Section 2.11 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each such Lender a notice (each, a "Prepayment Option Notice") as described below. Each payment of principal of any Competitive Borrowing As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each such Lender a Prepayment Option Notice, which shall be allocated pro rata among in the Revolving Credit Lenders participating form of Exhibit G, and shall include an offer by the Borrowers to prepay on the date (each a "Prepayment Date") that is ten Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Tranche B Prepayment Amount or the Incremental Facility B Prepayment Amount, as the case may be, indicated in such Borrowing in accordance with Lender's Prepayment Option Notice as being applicable to such Lender's Term Loans. On the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining Prepayment Date, (i) the Borrowers shall pay to the Administrative Agent the aggregate available Revolving Credit Commitments amount necessary to prepay that portion of the Revolving Credit outstanding relevant Term Loans in respect of which such Lenders at any time have accepted prepayment as described above (such Lenders, the "Accepting Lenders"), and such amount shall be applied to reduce the Tranche B Prepayment Amount or the Incremental Facility B Prepayment Amount, as the case may be, with respect to each Accepting Lender and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing Borrowers shall be deemed pay to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent mayan amount equal to 50% of the portion of the Tranche B Prepayment Amount and the Incremental Facility B Prepayment Amount not accepted by the Accepting Lenders, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of and such Borrowing amount shall be applied to the next higher or lower whole Dollar (or comparable unit prepayment of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Creditthe Tranche A Term Loans.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower the Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower Borrowers a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon (and no other interest) at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the BorrowerBorrowers.
(hg) Unless the Administrative Agent shall have been notified in writing by any Borrower the Borrowers prior to the date of any payment due to be being made by any Borrower hereunder that such Borrower the Borrowers will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is Borrowers are making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by such Borrower the Borrowers within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrowerthe Borrowers.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities in accordance with the Borrower’s instructions. 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. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.2:00 p.m., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such LenderXxxxxx’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, demand from the BorrowerBorrower (i) on the same Business Day if demand is made by the Administrative Agent on or prior to 11:00 a.m., New York City time and (ii) on the next Business Day if demand is made by the Administrative Agent after 11:00 a.m., New York City time.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(jh) Upon receipt by the Administrative Agent of payments on behalf of LendersXxxxxxx, the Administrative Agent shall promptly distribute such payments to the Lender or Lenders entitled thereto, in like funds as received by the Administrative Agent. Notwithstanding the foregoing, if the Administrative Agent receives any payment (whether voluntarily or involuntarily, pursuant to events or proceedings of the nature referred to in Section 8(f), or otherwise) (the amount of such payment, the “Payment Amount”) for the account of any Lender (whether in such Lender’s capacity as a Term Loan Lender, Revolving Credit Lender or L/C Participant), and at the time of such receipt such Lender, in its capacity as L/C Participant, is in default in any of its obligations pursuant to Section 3.4(a) (the amount of such obligations in default, the “Defaulted Amount”), the Administrative Agent may withhold from the Payment Amount an amount up to the Defaulted Amount, and apply the amount so withheld toward payment to the relevant Issuing Lender of the Defaulted Amount or, if applicable, toward reimbursement of any other Person that has previously reimbursed such Issuing Lender for the Defaulted Amount.
(i) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in L/C Disbursements or Swing Line Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in L/C Disbursements and Swing Line Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in L/C Disbursements and Swing Line Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in L/C Disbursements and Swing Line Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in L/C Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of 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.
Appears in 1 contract
Samples: Credit Agreement
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company any Borrower from the Term Loan Lenders hereunder, each payment by any Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan 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 Loan Lenders pro rata PRO RATA according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Subject to Section 2.18(d), each mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated between the Term Loan Facilities PRO RATA according to the respective outstanding principal amounts of Term Loans under such Facilities. Subject to Section 2.18(d), each optional prepayment in respect of the Term Loans shall be allocated between the Term Loan Facilities PRO RATA according to the respective outstanding principal amounts of Term Loans under such Facilities. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the any Term Loan Facility shall be allocated among the Term Loan Lenders holding such Term Loans pro rata PRO RATA based on the principal amount of such Term Loans held by such Term Loan Lenders, and shall be applied (i) in the case of mandatory prepayments pursuant to Section 2.12(b), to the installments thereof PRO RATA based on the remaining outstanding principal amount of such installments, and (ii) in the case of all other prepayments, FIRST, to the next scheduled installment thereof to be due after the date of such prepayment, and, SECOND, to the remaining installments PRO RATA based on the remaining outstanding principal amount of such installments. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by any Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment Revolving Credit Loans of such Borrower shall be made PRO RATA according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion Loans of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among such Borrower then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the relevant Issuing Lender that issued such Letter of CreditLender.
(ed) The application Notwithstanding anything to the contrary in Sections 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 Loans under such Lender; accordingly, with respect to the amount of any Facility (including optional and prepayment described in Section 2.11 or mandatory prepayments) shall be made first, prepayment described in Section 2.12 that is allocated to Base Rate Loans under such Facility and second, to Eurocurrency Loans under such Facility. Each payment of the Tranche B Term Loans (except such amounts, respectively, the "OPTIONAL PREPAYMENT AMOUNT" and the "MANDATORY PREPAYMENT AMOUNT"), at any time when Tranche A Term Loans remain outstanding, the Primary Borrower will:
(i) in the case of Revolving Credit any optional prepayment of the Tranche B Term Loans which the Primary Borrower wishes to make, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that are Base Rate Loansthe Administrative Agent prepare and provide to each Tranche B Term Loan Lender a notice (each, a "PREPAYMENT OPTION NOTICE") shall be accompanied by accrued interest to the date of such payment on the amount paid.as described below; and
(fii) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal mandatory prepayment required to be made pursuant to Section 2.12, on the preceding two sentencesdate specified in Section 2.12 for such prepayment, interest thereon shall be payable at the then applicable rate during such extension.
(gA) Unless give the Administrative Agent shall have been notified telephonic notice (promptly confirmed in writing by any Lender prior to a Borrowing writing) requesting that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative AgentAgent prepare and provide to each Tranche B Term Loan Lender a Prepayment Option Notice as described below and (B) deposit with the Administrative Agent the Mandatory Prepayment Amount. As promptly as practicable after receiving such notice from the Primary Borrower, the Administrative Agent may assume that will send to each Tranche B Term Loan Lender a Prepayment Option Notice, which shall be substantially in the form of Exhibit H, and shall include an offer by the Primary Borrower to prepay on the Prepayment Date the Tranche B Term Loans of such Lender is making such by an amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate portion of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive Optional Prepayment Amount or Mandatory Prepayment Amount, as the case may be, indicated in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.'s Prepayment Option Notice
Appears in 1 contract
Samples: Credit Agreement (White Mountains Insurance Group LTD)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunderhereunder (other than with respect to Foreign Currency Loans), each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages or Revolving Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment by the Borrower of interest the Foreign Currency Participation Fee with respect to any Foreign Currency Loan made in a particular Foreign Currency shall be made pro rata among the Revolving Lenders that are Foreign Currency Loan Participants in respect of the Term Foreign Currency Loans and each payment made in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the Foreign Currency in accordance with their respective amounts then due and owing to the applicable Term Loan LendersForeign Currency Participating Interests.
(b) Each payment (including each prepayment pursuant to Section 2.12 but excluding any prepayment pursuant to Section 2.11) by the Borrower on account of principal of and interest on the Term Loans shall be made pro rata according to the respective outstanding under principal amounts of the Term Loan Facility Loans then held by the Term Lenders. The amount of each principal prepayment of the Term Loans pursuant to Section 2.12 shall be allocated among applied, within each Term Facility, (i) first to scheduled installments of the Tranche A Term Loan Lenders holding such Loans occurring within the next 12 months in direct order of maturity and (ii) thereafter, to reduce the then remaining installments of the Tranche A Term Loans pro rata based upon the respective then remaining principal amounts thereof. Each prepayment pursuant to Section 2.11 by the Borrower on account of principal of and interest on the principal amount of such Tranche A Term Loans shall be made pro rata according to the respective principal amounts of the Tranche A Term Loans then held by such the Tranche A Term Loan Lenders. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Revolving Loans (other than Foreign Currency Loans, each payment of ) shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment borrowing by the Borrower of Foreign Currency Loans in respect of Reimbursement Obligations in respect of any Letter of Credit particular Foreign Currency shall be made among the Foreign Currency Lenders with respect to such Foreign Currency, with the Foreign Currency Loan of each Issuing such Foreign Currency Lender that issued (other than the Fronting Lender) to be in an amount equal to its Revolving Percentage of the applicable borrowing and the Foreign Currency Loan of the Fronting Lender to be in an amount equal to the aggregate amount of such Letter borrowing less the amount of Creditthe Foreign Currency Loans being made by other Foreign Currency Lenders and comprising part of such borrowing. Each payment (including each prepayment) by the Borrower on account of principal of and interest on 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 Foreign Currency Lenders.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwiseotherwise (other than in respect of the principal or interest on, or the fronting fee with respect to the Foreign Currency Loans), shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment Other than as set forth in Section 2.10(d), all payments (including prepayments) to be made by any the Borrower after 1:00 P.M.hereunder on account of principal or interest on, New York City time, on any Business Day or the fronting fee with respect to the Foreign Currency Loans shall be deemed to have been made in the relevant Foreign Currency, without setoff and counterclaim and shall be made on the next following Business Daydue date thereof to the Foreign Currency Agent, for the account of the applicable Foreign Currency Lenders (or, with respect to the fronting fee, the Fronting Lender), at the office, and prior to the time for payment for the relevant currency, set forth on the Administrative Schedule. The Administrative Agent or the Foreign Currency Agent, as applicable, shall distribute such payments to each relevant Lender or Fronting Lender, as the case may be, promptly upon receipt in like funds as received, net of any amounts owing by such Lender pursuant to Section 9.7. If any payment hereunder (other than payments on the Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate ABR Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(ih) This Section 2.18 If any Lender shall not be construed fail to apply to make any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments required to be made by it pursuant to non-Defaulting Lenders as opposed to Defaulting Lenders Section 2.7(b), 2.7(c), 2.11, 2.18(e), 2.18(f), 2.20(e), 3.4(a) or 9.7, then the Administrative Agent may, in its discretion and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
notwithstanding any contrary provision hereof, (ji) Upon receipt apply any amounts thereafter received by the Administrative Agent for the account of payments on behalf such Lender for the benefit of Lendersthe Administrative Agent, the Swingline Lender, any Fronting Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent shall promptly distribute such payments to the Lender or Lenders entitled thereto, in like funds as received by the Administrative Agentits discretion.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Tranche B Loan Percentages, Tranche C Term Loan Percentages, Conversion Term Loan Percentages, Seven-Year Revolving Credit Percentages or 364-Day Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans Loans, and each payment in respect of the fees payable hereunder and the Reimbursement Obligations, shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each payment (including each prepayment) of the Term Loans outstanding under the 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. Amounts paid or prepaid in respect , and shall be applied to the installments of such Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments based on the remaining outstanding principal amount of differing Classes of Term Loans to the extent otherwise permitted hereundersuch installments.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, Revolving Credit Loans shall be allocated among the Revolving Credit Facilities pro rata according to the respective Total Revolving Credit Commitments in respect thereof. Each payment (including each payment of the Commitment Fees, each reduction prepayment) of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Cumulus Media Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according prorataaccording to the respective Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment (other than prepayments) in respect of principal or interest in respect of the Tranche B 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 Term Loan Lenders pro rata prorata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each payment on account of principal (including each prepayment) of the Tranche B Term Loans outstanding under the Term Loan Facility shall be allocated among the Tranche B Term Loan Lenders holding such Tranche B Term Loans pro rata prorata based on the principal amount of such the Tranche B Term Loans held by such Tranche B Term Loan LendersLenders and shall (i) in the case of optional prepayment pursuant to Section 2.11 shall be applied to the remaining outstanding principal amount of such installments as requested by the Borrower and (ii) in the case of mandatory prepayment pursuant to Section 2.12 shall be applied, first, to the remaining installments due within the 24 months immediately following the date of such prepayment in the direct order of maturity of such installments and, second, prorata based on the remaining outstanding principal amount of such installments. Amounts paid or prepaid in respect on account of the Tranche B Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made prorata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.12:00 noon, New York City time, on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 prorata shares of a corresponding amount. If such payment is not made to the Administrative Agent by such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company ------------------------------- Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Delayed Draw --- ---- Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan 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 Loan Lenders pro rata according to the --- ---- respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.10 to be applied to Term Loans shall be allocated between the Term Loan Facilities pro rata --- ---- according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated between the Term Loan Facilities pro rata according to the respective --- ---- outstanding principal amounts of Term Loans under such Facilities. Each payment on account of principal (including each prepayment) of the Term Loans outstanding under the 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 paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment Revolving Credit Loans shall be made pro rata according to the respective outstanding principal amounts of the Commitment Fees, each reduction of --- ---- Revolving Credit Loans then held by the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of outstanding Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter Letters of Credit.
(ed) The application Notwithstanding anything to the contrary in Sections 2.9, 2.10 or 2.16, so long as any Delayed Draw Term Loans are outstanding, each Tranche B Term Loan Lender may, at its option, decline up to all or a portion of any optional prepayment or mandatory payment applicable to the Tranche B Term Loans of Loans under such Lender; accordingly, with respect to the amount of any Facility (including optional and prepayment described in Section 2.9 or mandatory prepayments) shall be made firstprepayment described in Section 2.10, in each case that is allocated to Base Rate Loans under such Facility and second, to Eurocurrency Loans under such Facility. Each payment of the Tranche B Term Loans (except such amounts, the "Tranche B Prepayment Amount"), at any time when Delayed Draw Term --------------------------- Loans remain outstanding, the Borrower will, (i) in the case of Revolving Credit Loans that are Base Rate Loans) shall be accompanied by accrued interest any optional prepayment which the Borrower wishes to make, not later than 10 Business Days prior to the date on which the Borrower wishes to make such optional prepayment, and (ii) in the case of any mandatory prepayment required to be made pursuant to Section 2.10, in lieu of applying such amount to the prepayment of Tranche B Term Loans as provided in Section 2.10(e) and 2.16(b), on the date specified in Section 2.10 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Term Loan Lender a notice (each, a "Prepayment Option Notice") as described below. As promptly as practicable ------------------------ after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Term Loan Lender (with a copy to the Borrower) a Prepayment Option Notice, which shall be in the form of Exhibit H, and shall include an offer by the Borrower to prepay on the date (each a "Prepayment ---------- Date") that is 3 Business Days after the date of the Prepayment Option Notice, ---- the relevant Tranche B Term Loans of such payment on Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans. On the Prepayment Date, (i) the Borrower shall pay to the Administrative Agent the aggregate amount paidnecessary to prepay that portion of the outstanding relevant Tranche B Term Loans in respect of which Tranche B Term Loan Lenders have accepted prepayment as described above (such Lenders, the "Accepting Lenders"), ----------------- and such amount shall be applied toward prepayment of the Tranche B Term Loans with respect to each Accepting Lender and (ii) the Borrower shall pay to the Administrative Agent an amount equal to the portion of the Tranche B Prepayment Amount not accepted by the Tranche B Term Loan Lenders, and such amount shall be applied to the prepayment of the Delayed Draw Term Loans.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M.pm, New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.pm, New York City time, on any Business Day shall be deemed to have been on the next following Business Day. The Administrative Agent shall distribute such payments to the Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Revolving Borrower from the Term Loan Revolving Lenders hereunder, hereunder shall be made pro rata according to the respective Term Loan Percentages Revolving Commitments of the Term Loan Revolving Lenders. Each payment of interest Except as otherwise provided in respect Section 2.18(b), any reduction of the Term Loans and each payment in respect Revolving Commitments of fees payable hereunder the Revolving Lenders shall be applied to the amounts of such obligations owing to the Term Loan Lenders made pro rata according to the respective amounts then due and owing Revolving Commitments of the Revolving Lenders. Each payment by the Revolving Borrower on account of any commitment fee with respect to any period shall be made pro rata according to the applicable Term Loan Lendersrespective average daily Available Revolving Commitments of the Revolving Lenders for such period; provided, that the Revolving Borrower shall not be obligated to pay any commitment fee owed to a Revolving Lender with respect to any period during which such Revolving Lender became a Defaulting Lender, and such Defaulting Lender’s Available Revolving Commitment shall not be included in the calculation of the commitment fees owed to the Revolving Lenders that are not Defaulting Lenders during such period, unless in either case such Revolving Lender remains a Performing Lender during such period.
(b) Each Except as otherwise provided in Section 2.18(b), each payment (including each prepayment) by the Revolving Borrower on account of principal of and interest on the Term Revolving Loans outstanding under the Term Loan Facility shall be allocated among the Term Loan Lenders holding such Term Loans made pro rata based on according to the respective outstanding principal amount amounts of such Term the Revolving Loans then held by such Term Loan the Revolving Lenders. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Revolving Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M.12:00 Noon, New York City time, on the due date thereof to the Revolving Administrative Agent, for the account of the relevant Revolving Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Revolving Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayRevolving Lenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the LIBOR Loans) hereunder becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency LIBOR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentences, interest thereon shall be payable at the then applicable rate during such extension.
(gd) Unless the Revolving Administrative Agent shall have been notified in writing by any Revolving Lender prior to the Borrowing Time on a Borrowing Date that such Revolving Lender will not make the amount that would constitute its share of such Borrowing borrowing on such date available to the Revolving Administrative Agent, the Revolving Administrative Agent may assume that such Revolving Lender is making has made such amount available to the Revolving Administrative AgentAgent on such Borrowing Date, and the Revolving Administrative Agent may, but shall not be so required to, in reliance upon such assumption, make available to the Revolving Borrower a corresponding amount. If such amount is not made available to the Revolving Administrative Agent by the required time on such Borrowing Date, and if the Borrowing Date thereforRevolving Administrative Agent makes such corresponding amount available to the Revolving Borrower, then such Revolving Lender shall pay to the Revolving Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Revolving Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Revolving Lender makes such amount immediately available to the Revolving Administrative Agent. A certificate of the Revolving Administrative Agent submitted to any Revolving Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If the Revolving Administrative Agent makes such Revolving Lender’s share of such Borrowing borrowing available to the Revolving Borrower, and if such Revolving Lender’s share of such borrowing is not made available to the Revolving Administrative Agent by such Revolving Lender within three (3) Business Days after such Borrowing Date, the Revolving Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant FacilityABR Loans, on demand, from the Revolving Borrower. The failure of any Revolving Lender to make any Revolving Loan on any Borrowing Date shall not relieve any other Revolving Lender of its obligation hereunder to make a Revolving Loan on such Borrowing Date pursuant to the provisions contained herein, but no Revolving Lender shall be responsible for the failure of any other Revolving Lender to make the Revolving Loan to be made by such other Revolving Lender on any Borrowing Date.
(he) Unless the Revolving Administrative Agent shall have been notified in writing by any the Revolving Borrower prior to the date of any payment due to be made by any the Revolving Borrower hereunder that such the Revolving Borrower will not make such payment to the Revolving Administrative Agent, the Revolving Administrative Agent may assume that the Revolving Borrower is making such payment, and the Revolving Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Revolving Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Revolving Administrative Agent by such the Revolving Borrower within three (3) Business Days after such due date, the Revolving Administrative Agent shall be entitled to recover, on demand, from each Revolving 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 Revolving Administrative Agent or any Revolving Lender against any the Revolving Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing Except to the extent otherwise provided herein, each borrowing of Term Loans by the Company Borrower from the Term Loan Lenders hereunder, and any termination or reduction of the Commitments of the Lenders hereunder shall be made pro rata according to the respective Term Loan relevant Commitment Percentages of the Term Loan Lenders. Each payment of interest in Lenders with respect of the Term Loans and each payment in respect of fees payable hereunder shall be applied to the amounts Loans borrowed or the Commitments to be reduced. The provisions of such obligations owing this subsection shall not be construed to the Term Loan Lenders apply to (i) any payment or prepayment made by or on behalf of Borrower or any other Credit Party on a non-pro rata according basis pursuant to and in accordance with the respective amounts then due express terms of this Agreement as in effect from time to time (including the application of funds arising from the existence of a Defaulting Lender), (ii) the application of Cash Collateral provided in subsection 3.13, (iii) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or L/C Participating Interests to any assignee or participant or the termination of any Lender’s commitment and owing to the applicable Term Loan 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 non-pro rata based on the principal amount repayment of such Loans pursuant to subsection 4.17, (iv) transactions in connection with an open market purchase or a “Dutch auction” or other debt buyback expressly permitted hereunder, or (v) in connection with a transaction pursuant to a Loan Modification Offer or Extension, Incremental Loan Amendment or amendment in connection with Replacement Term Loans held by such Term Loan Lenders. Amounts paid or prepaid in respect of Term Loans may not be reborrowedLoans. For the avoidance of doubt, this Section 2.18(ashall not limit the ability of Holdings, Borrower or any Restricted Subsidiary, to the extent expressly permitted by the terms of this Agreement, to (i) purchase and retire Term Loans pursuant to an open market purchase or a “Dutch auction” or other debt buyback or (ii) pay principal, fees, premiums and interest with respect to Replacement Term Loans, Incremental Loans or Extended Term Loans or Extended Revolving Credit Commitments following the effectiveness of any amendment with respect to Replacement Term Loans, any Extension Election or Incremental Loan Amendment, as applicable, on a basis different from the Loans of such Class that will continue to be held by Lenders that were not Extending Tenn Lenders, Lenders with an Extended Revolving Credit Commitment or Lenders pursuant to such Incremental Loan Amendment or amendment with respect to Replacement Tenn Loans, as applicable.
(b) do not prohibit non pro rata payments of differing Classes of Term Loans Whenever any payment received by the Administrative Agent under this Agreement or any Note or any other Credit Document is insufficient to pay in full all amounts then due and payable to the extent otherwise permitted hereunder.
(c) Except as required Administrative Agent and the Lenders under Section 2.22 or as provided this Agreement, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in Section 2.25the following order: first, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each to the payment of interest on fees and expenses due and payable to the Standby LoansAdministrative Agent (in such capacity and not in its capacity as a Lender) under and in connection with this Agreement and the other Credit Documents; second, each to the payment of the Commitment Feesall expenses due and payable under subsection 11.5, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata ratably among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (orthe aggregate amount of such payments owed to each such Lender; third, if such Revolving Credit Commitments shall have expired or been terminatedto the payment of fees due and payable under subsections 3.2 and 3.8, ratably among the Lenders in accordance with the respective principal amounts Commitment Percentage of their outstanding Standby Loans). Each each Lender of the Commitment for which such payment is owed and, in the case of the Issuing Lender, the amount retained by the Issuing Lender for its own account pursuant to subsection 3.8; fourth, to the payment of principal of any Competitive Borrowing shall be allocated pro rata among interest then due and payable on the Revolving Credit Lenders participating in such Borrowing Loans and the L/C Obligations ratably in accordance with the respective principal amounts aggregate amount of their outstanding Competitive Loans comprising interest owed to each such Borrowing. Each Lender; and fifth, to the payment of interest on any Competitive Borrowing shall the other Obligations (the amounts so applied to be allocated pro rata distributed among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) Secured Parties pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes the amounts of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed the Obligations due and payable to have utilized them on the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion date of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountdistribution).
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(fc) All payments (including prepayments) to be made by any Borrower hereunder, whether on account of principal, interest, interest and fees or otherwise, shall be made without setoff set-off, counterclaim or counterclaim other defense 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 relevant Issuing Lender or the Lenders, as the case may be, at the Payment OfficeAdministrative Agent’s office located at the address set forth in Section 11.2 not later than 1:00 p.m. New York City time, on the date when due, in Dollars lawful money of the United States and in immediately available funds. Any payment made by any Borrower amounts received after 1:00 P.M., New York City time, such time on any Business Day shall date may, in the discretion of the Administrative Agent, be deemed to have been received on the next following succeeding Business DayDay for purposes of calculating interest thereon. The Administrative Agent shall promptly distribute such payments in accordance with the provisions of subsection 4.12(b) upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency LoansLIBOR Loans or as otherwise expressly provided herein) becomes would become due and payable on a day other than a Business Day, such payment shall be extended to become due and payable on the next succeeding Business DayDay 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 Eurocurrency LIBOR Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day (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.
(gd) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that which would constitute its share Commitment Percentage of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, Agent in accordance with subsection 4.1 and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph subsection 4.12(d) shall be conclusive in the absence of absent manifest error. If such Lender’s share Commitment Percentage of such Borrowing borrowing is not in fact made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Index Rate Loans under the relevant Facilityhereunder (in lieu of any otherwise applicable interest), on demand, from Borrower, without prejudice to any rights which Borrower or the BorrowerAdministrative Agent may have against such Lender hereunder. Nothing contained in this subsection 4.12 shall relieve any Lender which has failed to make available its ratable portion of any borrowing hereunder from its obligation to do so in accordance with the terms hereof.
(he) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date The failure of any payment due Lender to make the Loan to be made by it on any Borrower Borrowing Date shall not relieve any other Lender of its obligation, if any, hereunder that to make its Loan on such 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 mayBorrowing Date, 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 no Lender shall be entitled to recover, on demand, from each responsible for the failure of any other Lender to which any amount which was made available pursuant to make 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 any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments Loan to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24by such other Lender on such Borrowing Date.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Clearwater Analytics Holdings, Inc.)
Pro Rata Treatment and Payments. (a) Each Borrowing borrowing of Term Loans by the Company ------------------------------- from the Term Loan Lenders hereunder, hereunder shall be made pro rata according to the respective --- ---- Tranche A Term Loan Percentages, Tranche B Term Loan Percentages and Revolving Credit Term Loan Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of interest in respect of the Term Loans and Subject to subsection 6.7, each payment by the Company on account of unused commitment fees and Letter of Credit commissions and any reduction in respect of fees payable hereunder the Revolving Credit Commitments shall be applied to the amounts of such obligations owing to the Term Loan Lenders made pro rata according to the respective amounts then due and owing to --- ---- Revolving Credit Percentages of the applicable Term Loan Lenders.
(b) Each payment (including each prepayment) by the Company on account of principal of and interest on the Term Loans under any Facility shall be made pro rata according to the respective outstanding principal amounts of --- ---- the Term Loans under such Facility then held by the Term Loan Facility Lender. The amount of each principal payment of the Term Loans shall be allocated among applied to reduce the Term Loan Lenders holding such then remaining installments of the Term Loans pro rata based on upon the then remaining --- ---- outstanding principal amount amounts of such Term Loans held by such Term Loan Lenders. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunderinstallments.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each Each payment or prepayment (including prepayments) by the Company on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment Revolving Credit Loans and the principal and interest components of the Commitment Fees, each reduction Reimbursement Obligations shall be made pro rata --- ---- according to the respective outstanding principal amounts of the Revolving Credit Commitments Loans and Reimbursement Obligations held by each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Revolving Credit Lender; provided that appropriate adjustments shall be allocated pro rata among made in the Revolving Credit Lenders application of -------- payment of Reimbursement Obligations with respect to which any such Lender has not paid for its participating interest in accordance with their respective Revolving Credit Commitments subsection 5.2.
(or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts d) Each prepayment of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing Term Loan Facilities shall be allocated pro rata among applied to the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing Term Loan Facilities ratably in accordance with the respective amounts of accrued and unpaid interest on their then outstanding Competitive Loans comprising under such Borrowing. For purposes of determining Facilities; provided that the Company may apply any -------- prepayment made pursuant to subsection 6.2, at its option, either (i) to prepay Tranche A Term Loans and Tranche B Term Loans ratably in accordance with the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and respective amounts then outstanding or (ii) to prepay Tranche A Term Loans; provided, further that the available Revolving Credit Commitment of each Revolving Credit LenderCompany may apply any prepayment made pursuant to -------- ------- subsection 6.1(a), each outstanding Competitive Borrowing shall be deemed (b) or (e), at its option, either (i) to have utilized prepay Tranche A Term Loans and the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Tranche B Term Loans as part of such Competitive Borrowing) pro rata ratably in accordance with such the respective Revolving Credit Commitments; providedamounts then outstanding or (ii) to prepay the Tranche A Term Loans and, howeverif Tranche A Term Loans are no longer outstanding, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed then to have utilized prepay the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of CreditTranche B Term Loans.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower hereunderthe Company hereunder and under the Notes, except payments to be made directly to the Swingline Lender as expressly provided herein, whether on account of principal, interest, fees fees, Reimbursement Obligations or otherwise, shall be made without setoff set-off or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment OfficeAgent's depositary bank as designated by the Agent from time to time for deposit in the Agent's depositary account, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended and, with respect to the next succeeding Business Day unless the result payments of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any extension of any payment of principal pursuant to the preceding two sentencesprincipal, interest thereon shall be payable at the then applicable rate during such extension.
. The Agent is hereby authorized to, and at its option may, make advances on behalf of the Company for payment of all fees, expenses, charges, costs, principal, interest and Reimbursement Obligations incurred by the Company hereunder; provided that (ga) Unless the Administrative Agent shall have been notified no obligation to make such advances and -------- (b) if the Agent makes any such advances in writing by respect of any Loans (or interest or premium thereon), Reimbursement Obligations or expenses, charges or costs to which any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agentis entitled, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay each Lender within ten days the portion thereof to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent which it is entitled in accordance with banking industry rules on interbank compensationthis subsection 6.12. Such advances may be made when and as the Company fails to promptly pay such fees, for expenses, charges, costs, principal, interest and Reimbursement Obligations and, at the period until such Lender makes such amount immediately available Agent's option and to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent extent permitted by such Lender within three Business Days after such Borrowing Datelaw, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any BorrowerRevolving Credit Loans hereunder.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Pameco Corp)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche A Term Loan Percentages, Tranche B Term Percentages, Tranche X-0 Xxxx Xxxxxxxxxxx, Xxxxxxx X-0 Term Percentages, Dollar Revolving Percentages or Alternative Currency Revolving Percentages, as the case may be, of the Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 under principal amounts of the Term Loan Facility Loans then held by the Term Lenders (except (i) as otherwise provided in Section 2.11(e) and except, (ii) that an optional prepayment pursuant to Section 2.10 need only be made pro rata according to the respective outstanding principal amounts of the Term Loans of the applicable tranche being prepaid then held by the Term Lenders and (iii) any prepayment of Term Loans with the Net Cash Proceeds of Credit Agreement Refinancing Debt shall be allocated among applied solely to each applicable tranche of Refinanced Debt). The amount of each principal prepayment of the Term Loan Lenders holding such Loans shall be applied to reduce the then remaining installments of the Tranche A Term Loans, Tranche B Term Loans, Tranche A-3 Term Loans and Tranche B-2 Term Loans, as the case may be, pro rata based on upon the respective then remaining principal amount of such Term Loans held by such Term Loan Lendersamounts thereof. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the relevant Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M., New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment OfficeFunding Office for the applicable currency, in Dollars the currency in which the applicable Loan was made and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(ge) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon thereon, at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such 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 Base Rate (i) with respect to borrowings under the Dollar Revolving Facility, ABR Loans under the relevant Dollar Revolving Facility or (ii) with respect to borrowings under the Alternative Currency Revolving Facility, Eurodollar Loans under the Alternative Currency Revolving Facility, in each case, on demand, from the Borrower.
(hf) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(ig) This Section 2.18 If any Lender shall not be construed fail to apply to make any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments required to be made by it pursuant to non-Defaulting Lenders as opposed to Defaulting Lenders Section 2.5, Section 2.7(c), Section 3.4, Section 3.5(e) or Section 11.5(c), then the Administrative Agent may, in its discretion and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
notwithstanding any contrary provision hereof, (ji) Upon receipt apply any amounts thereafter received by the Administrative Agent for the account of payments on behalf such Lender for the benefit of Lendersthe Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) until such failure to make payment has been cured, hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent shall promptly distribute such payments to the Lender or Lenders entitled thereto, in like funds as received by the Administrative Agentits discretion.
Appears in 1 contract
Samples: Credit Agreement (Davita Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche B-1 Term Loan Percentages, Tranche B-2 Term Percentages, Incremental Term Percentages or Revolving Percentages, as the case may be, of the Term Loan Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan 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 under principal amounts of Tranche B Term Loans and Incremental Term Loans then held by the relevant Lenders (for the avoidance of doubt, it being understood that the Borrower may choose to optionally prepay Tranche B-1 Term Loans pursuant to Section 4.1 without prepaying any Tranche B-2 Term Loans or Incremental Term Loans, and that the relevant Lenders with respect to certain payments of principal and interest may only include 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 Lendersunder a certain Subfacility). Amounts paid repaid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments Loans then held by the relevant Revolving Lenders. Each payment (including each prepayment) by the Borrower on account of principal of and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, interest solely on the Revolving Loans that are not Extended Revolving Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans)the Revolving Loans then held by the relevant Revolving Lenders that are not Extended Revolving Lenders. Each payment (including each prepayment) by the Borrower on account of principal of any Competitive Borrowing and interest solely on the Extended Revolving Loans shall be allocated made pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with according to the respective outstanding principal amounts of their outstanding Competitive the Extended Revolving Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among then held by the relevant Extended Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each Issuing Lender that issued such Letter of Credit.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(ge) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative AgentAgent on the Borrowing Date, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amountamount on the Borrowing Date. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, compensation for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the Borrower. In addition to the rights described above, in the event that the Administrative Agent shall make available to the Borrower all or any portion of the Term Loans of any Lender and such Lender shall fail to make available to the Administrative Agent a corresponding amount by 5:00 P.M. New York City time within one Business Day of extension of credit, the Administrative Agent in its sole discretion shall be entitled to immediately and without further action on the part of such Lender register a transfer of such Lender’s Term Loans to a replacement Lender, which shall be the Administrative Agent. The Administrative Agent agrees to purchase any such Term Loans at par and in accordance with Section 11.6 (other than the requirement for the signature of the defaulting Lender on the Assignment and Assumption in connection with such transfer). In addition to any other remedies the Borrower or the Administrative Agent may have against such defaulting Lender, the Administrative Agent shall be entitled to recover from such defaulting Lender the difference (if positive) between par and the amount for which it is able to sell such purchased Term Loans in the secondary market.
(hf) If any Lender shall fail to make any payment required to be made by it pursuant to Section 3.4(b), 3.10(a) or (b), 4.8(e) or (g), or 11.5, then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Lender to satisfy such Lender’s obligations to it under such Section until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.
(g) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be made by any the Borrower hereunder that such 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 such 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 any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Amendment and Restatement Agreement (Metropcs Communications Inc)
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company a Borrower from the Term Loan Lenders hereunder, each payment by a Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Tranche B Term Loan Percentages, Tranche C Term Loan Percentages, Tranche D Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each Subject to Section 2.18(c), each payment (other than prepayments) in respect of principal or interest in respect of the Term Loans Loans, and each payment in respect of fees or expenses payable hereunder shall be applied to the amounts of such obligations owing to the Term Loan Lenders pro rata according to the respective amounts then due and owing to the applicable 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. In the event the Borrowers elect to prepay Tranche C Term Loans or Tranche D Term Loans under Section 2.11, amounts to be applied in connection with such prepayments shall be applied to the prepayment of the Tranche C Term Loans and the Tranche D Term Loans pro rata among the Tranche C Term Loan LendersFacility and the Tranche D Term Loan Facility based upon the remaining unpaid aggregate principal amounts thereof.
(bi) Each payment on account of principal (including each prepayment) of the Tranche B Term Loans outstanding under the any Tranche B Term Loan Facility shall be allocated among the Tranche B Term Loan Lenders holding such Tranche B Term Loans pro rata based on the principal amount of such Tranche B Term Loans held by such Tranche B Term Loan Lenders, and shall be applied to the installments of such Tranche B Term Loans pro rata based on the remaining outstanding principal amount of such installments; (ii) each payment (including each prepayment) of the Tranche C Term Loans outstanding under any Tranche C Term Loan Facility shall be allocated among the Tranche C Term Loan Lenders holding such Tranche C Term Loans pro rata based on the principal amount of such Tranche C Term Loans held by such Tranche C Term Loan Lenders, and shall be applied to the installments of such Tranche C Term Loans pro rata based on the remaining outstanding principal amount of such installments; and (iii) each payment (including each prepayment) of the Tranche D Term Loans outstanding under any Tranche D Term Loan Facility shall be allocated among the Tranche D Term Loan Lenders holding such Tranche D Term Loans pro rata based on the principal amount of such Tranche D Term Loans held by such Tranche D Term Loan Lenders, and each prepayment shall be applied to the installments of such Tranche D Term Loans pro rata based on the remaining outstanding principal amount of such installments. Amounts paid or prepaid in respect on account of the Tranche B Term Loans, the Tranche C Term Loans and the Tranche D Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by a Borrower on account of principal of any Standby Borrowing, each payment of and interest on the Standby Loans, each payment of Revolving Credit Loans shall be made pro rata according to the Commitment Fees, each reduction respective outstanding principal amounts of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, shall be allocated pro rata among Loans then held by the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Standby Loans)Lenders. Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of connection with any Letter of Credit shall be made to the Issuing Lender.
(d) Notwithstanding anything to the contrary in Section 2.12 or this Section 2.18, each Issuing Term Loan Lender may, at its option, decline all or any portion of any mandatory payment applicable to the Term Loans of such Lender; accordingly, with respect to the amount of any mandatory prepayment described in Section 2.12 that issued is allocated to a Term Loan (such Letter amounts, the "Term Loan Prepayment Amount"), the Borrowers will, in lieu of Creditapplying such amount to the prepayment of applicable Term Loans, as provided in Sections 2.12(e) and 2.18(b), on or up to 10 Business Days prior to the date specified in Section 2.12 for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Term Loan Lender entitled to receive a mandatory prepayment a Prepayment Option Notice as described below and, on the date specified in Section 2.12 for such prepayment, deposit such amount in a cash collateral account opened by the Administrative Agent pending application of such amount in accordance with this Section 2.18(d). As promptly as practicable after receiving such notice from the Borrowers, the Administrative Agent will send to each applicable Term Loan Lender a Prepayment Option Notice, which shall include an offer by the Borrowers to prepay on the date (each a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the Prepayment Amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Term Loans. On the Prepayment Date, (i) the Administrative Agent shall apply from the amount deposited in the cash collateral account pursuant to this Section 2.18(d) the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of which Term Loan Lenders have accepted prepayment as described above, and such amount shall be applied to reduce the Term Loan Prepayment Amounts with respect to each Accepting Lender, and (ii) the Administrative Agent shall pay to the applicable Borrower from the amount deposited in such cash collateral account the remaining portion of the Term Loan Prepayment Amount not accepted by the Term Loan Lenders; provided that if the amount held in such cash collateral account is less than the total amount required to be paid pursuant to clause (i) of this sentence, the Borrowers shall pay to the Administrative Agent, on the Prepayment Date, in immediately available funds an amount equal to the difference between such amounts. The Borrowers hereby grant to the Administrative Agent, for the ratable benefit of the Secured Parties, a continuing security interest in all amounts at any time on deposit in such cash collateral account to secure all Obligations from time to time outstanding.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any Borrower the Borrowers hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M.1:00pm, New York City time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the applicable Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate Loans under the relevant Facility, on demand, from the BorrowerBorrowers.
(hg) Unless Subject to Section 2.18(d), unless the Administrative Agent shall have been notified in writing by any Borrower the Borrowers prior to the date of any payment due to be being made by any Borrower hereunder that such Borrower the Borrowers will not make such payment to the Administrative Agent, the Administrative Agent may assume that the Borrower is Borrowers are making such payment, and the Administrative Agent may, but shall not be required to, in reliance upon such assumption, make available to the Lenders their respective pro rata shares of a corresponding amount. If such payment is not made to the Administrative Agent by such Borrower the Borrowers within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrowerthe Borrowers.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee, and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Term Loan Percentages or Revolving Credit Percentages, as the case may be, of the Term Loan relevant Lenders. Each payment of 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 Loan Lenders pro rata according to the respective amounts then due and owing to the applicable Term Loan Lenders.
(b) Each mandatory prepayment required by Section 2.12 to be applied to Term Loans shall be allocated among the Term Loan Facilities pro rata according to the respective outstanding principal amounts of Term Loans under such Facilities. Each optional prepayment in respect of the Term Loans shall be allocated among the Term Loan Facilities in accordance with the Borrower’s instructions. 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. Amounts paid or prepaid in respect on account of the Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, Each payment (including each Standby Borrowing, each payment or prepayment prepayment) by the Borrower on account of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized Loans then held by the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing)Lenders. Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amount.
(d) Each payment in respect of Reimbursement Obligations in respect of any Letter of Credit shall be made to each the Issuing Lender that issued such Letter of Credit.
(ed) The application of any payment of Loans under any Facility (including optional and mandatory prepayments) shall be made made, first, to Base Rate Loans under such Facility and and, second, to Eurocurrency 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 accrued interest to the date of such payment on the amount paid.
(fe) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 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 relevant Lenders, at the Payment Office, in Dollars and in immediately available funds. Any payment made by any the Borrower after 1:00 P.M.2:00 p.m., New York City time, on any Business Day shall be deemed to have been on the next following Business Day. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(g) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing that such Lender will not make the amount that would constitute its share of such Borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s share of such Borrowing is not made available to the Administrative Agent by such Lender within three 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 Base Rate Loans under the relevant Facility, on demand, from the Borrower.
(h) Unless the Administrative Agent shall have been notified in writing by any Borrower prior to the date of any payment due to be made by any Borrower hereunder that such 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 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 daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Pro Rata Treatment and Payments. (a) Each Borrowing of Term Loans borrowing by the Company Borrower from the Term Loan Revolving Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Revolving Commitments of the Lenders shall be made pro rata according to the relevant Revolving Commitments of the relevant Lenders. It is understood that each borrowing of Revolving Loans shall be allocated to such Revolving Facility as shall be selected by the Borrower.
(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 Term Loan Percentages of the Term Loan Lenders. Each payment of interest in respect outstanding principal amounts of the Term Loans and then held by the Term Lenders (except as otherwise provided in Section 2.15(d)). The amount of each payment in respect principal prepayment of fees payable hereunder the Term Loans shall be applied to reduce the amounts then remaining installments of such obligations owing to the Tranche A Term Loans, Tranche B Term Loans and Incremental Term Loans, as the case may be, pro rata based upon the then remaining principal amount thereof. Amounts prepaid on account of the Term Loan Lenders Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on account of principal of and interest on the Existing Revolving Loans shall be made pro rata according to the respective outstanding principal amounts of the Existing Revolving Loans then due and owing to held by the applicable Term Loan Existing Revolving Lenders.
(b) . Each payment (including each prepayment) by the Borrower 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. Amounts paid or prepaid in respect of Term Loans may not be reborrowed. For the avoidance of doubt, Section 2.18(a) and (b) do not prohibit non pro rata payments of differing Classes of Term Loans to the extent otherwise permitted hereunder.
(c) Except as required under Section 2.22 or as provided in Section 2.25, each Standby Borrowing, each payment or prepayment of principal of any Standby Borrowing, each payment of interest on the Standby Loans, each payment of the Commitment Fees, each reduction of the Restatement Revolving Credit Commitments and each conversion of any Borrowing into, or continuation of, a Standby Borrowing of any Type, Loans shall be allocated made pro rata among the Revolving Credit Lenders in accordance with their respective Revolving Credit Commitments (or, if such Revolving Credit Commitments shall have expired or been terminated, in accordance with according to the respective outstanding principal amounts of their outstanding Standby Loans). Each payment of principal of any Competitive Borrowing shall be allocated pro rata among the Restatement Revolving Credit Lenders participating in such Borrowing in accordance with Loans then held by the respective principal amounts of their outstanding Competitive Loans comprising such Borrowing. Each payment of interest on any Competitive Borrowing shall be allocated pro rata among the Restatement Revolving Credit Lenders participating in such Borrowing in accordance with the respective amounts of accrued and unpaid interest on their outstanding Competitive Loans comprising such Borrowing. For purposes of determining (i) the aggregate available Revolving Credit Commitments of the Revolving Credit Lenders at any time and (ii) the available Revolving Credit Commitment of each Revolving Credit Lender, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of the Revolving Credit Lenders (including those Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing) pro rata in accordance with such respective Revolving Credit Commitments; provided, however, that for purposes of determining payments of Commitment Fees under Section 2.09, each outstanding Competitive Borrowing shall be deemed to have utilized the Revolving Credit Commitments of only the Revolving Credit Lenders that have made Competitive Loans comprising such Competitive Borrowing (it being understood that the Revolving Credit Commitment of Revolving Credit Lenders which shall not have made Revolving Credit Loans as part of such Competitive Borrowing shall not be deemed utilized as a result of such Competitive Borrowing). Each Revolving Credit Lender agrees that in computing such Revolving Credit Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Revolving Credit Lender’s Revolving Credit Percentage of such Borrowing to the next higher or lower whole Dollar (or comparable unit of any applicable Alternative Currency) amountLenders.
(d) Each payment Notwithstanding anything to the contrary in this Agreement, with respect to the amount of any mandatory prepayment of the Term Loans pursuant to Section 2.9 and, if the Borrower so elects in its sole discretion, any optional prepayment of the Term Loans pursuant to Section 2.8, that in any such case is allocated to Tranche B Term Loans or Incremental Term Loans (such amounts, the "Tranche B Prepayment Amount" and the "Incremental Prepayment Amount", respectively), at any time when Tranche A Term Loans remain outstanding, the Borrower will (or, in the case of optional prepayments, may), in lieu of applying such amount to the prepayment of Tranche B Term Loans and Incremental Term Loans, respectively, on the date specified in Section 2.9 or 2.8, as the case may be, for such prepayment, give the Administrative Agent telephonic notice (promptly confirmed in writing) requesting that the Administrative Agent prepare and provide to each Tranche B Lender and Incremental Term Lender a notice (each, a "Prepayment Option Notice") as described below. As promptly as practicable after receiving such notice from the Borrower, the Administrative Agent will send to each Tranche B Lender and Incremental Term Lender a Prepayment Option Notice, which shall be in the form of Exhibit F, and shall include an offer by the Borrower to prepay on the date (each a "Prepayment Date") that is 10 Business Days after the date of the Prepayment Option Notice, the relevant Term Loans of such Lender by an amount equal to the portion of the prepayment amount indicated in such Lender's Prepayment Option Notice as being applicable to such Lender's Tranche B Term Loans or Incremental Term Loans, as the case may be. On the Prepayment Date, (i) the Borrower shall pay to the relevant Tranche B Lenders and Incremental Term Lenders the aggregate amount necessary to prepay that portion of the outstanding relevant Term Loans in respect of Reimbursement Obligations which such Lenders have accepted prepayment as described in respect the Prepayment Option Notice, (ii) the Borrower shall pay to the Tranche A Term Lenders an amount equal to 50% (or, in the case of any Letter of Credit optional prepayments, such percentage as shall be made determined by the Borrower in its sole discretion) of the portion of the Tranche B Prepayment Amount and the Incremental Prepayment Amount not accepted by the relevant Lenders, and such amount shall be applied pro rata to each Issuing Lender that issued such Letter the prepayment of Creditthe Tranche A Term Loans, and (iii) the Borrower shall be entitled to retain the remaining portion of the Tranche B Prepayment Amount and the Incremental Prepayment Amount not accepted by the relevant Lenders.
(e) 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 Eurocurrency 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.
(f) All payments (including prepayments) to be made by any the Borrower hereunder, whether on account of principal, interest, fees or otherwise, shall be made without setoff or counterclaim and shall be made prior to 1:00 P.M.12:00 Noon, New York City Houston time, on the due date thereof to the Administrative Agent, for the account of the relevant Lenders, at the Payment Funding Office, in Dollars and in immediately available funds. Any payment made by any Borrower after 1:00 P.M., New York City time, on any Business Day The Administrative Agent shall be deemed distribute such payments to have been on the next following Business DayLenders promptly upon receipt in like funds as received. If any payment hereunder (other than payments on Eurocurrency the Eurodollar Loans) becomes due and payable on a day other than a Business Day, such payment shall be extended to the next succeeding Business Day. If any payment on a Eurocurrency Eurodollar Loan becomes due and payable on a day other than a Business Day, the maturity thereof shall be extended to the next succeeding Business Day unless the result of such extension would be to extend such payment into another calendar month, in which event such payment shall be made on the immediately preceding Business Day. In the case of any 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.
(gf) Unless the Administrative Agent shall have been notified in writing by any Lender prior to a Borrowing borrowing that such Lender will not make the amount that would constitute its share of such Borrowing borrowing available to the Administrative Agent, the Administrative Agent may assume that such Lender is making such amount available to the Administrative Agent, and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If such amount is not made available to the Administrative Agent by the required time on the Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on demand, such amount with interest thereon at a rate equal to the greater of (i) the daily average Federal Funds Effective Rate and (ii) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, for the period until such Lender makes such amount immediately available to the Administrative Agent. A certificate of the Administrative Agent submitted to any Lender with respect to any amounts owing under this paragraph shall be conclusive in the absence of manifest error. If such Lender’s 's share of such Borrowing borrowing is not made available to the Administrative Agent by such Lender within three Business Days after of such Borrowing Date, the Administrative Agent shall also be entitled to recover such amount with interest thereon at the rate per annum applicable to Base Rate ABR Loans under the relevant Facility, on demand, from the Borrower. Nothing in this paragraph shall be deemed to limit the rights of the Administrative Agent or the Borrower against any Lender.
(hg) Unless the Administrative Agent shall have been notified in writing by any the Borrower prior to the date of any payment due to be being made by any Borrower hereunder that such 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 such the Borrower within three Business Days after of such due required date, the Administrative Agent shall be entitled to recover, on demand, from each Lender to which any amount which was made available pursuant to the preceding sentence, such amount with interest thereon at the rate per annum equal to the daily average Federal Funds Effective Rate. Nothing herein shall be deemed to limit the rights of the Administrative Agent or any Lender against any the Borrower.
(i) This Section 2.18 shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express provisions of this Agreement, including differing payments to be made to non-Defaulting Lenders as opposed to Defaulting Lenders and payments made in connection with an assignment permitted under Section 10.06. This Section 2.18 shall be subject to the provisions of Section 2.22 and Section 2.24.
(j) 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.
Appears in 1 contract
Samples: Credit Agreement (Charter Communications Holdings LLC)
