(b). The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded by a Floating Rate Advance from the Lenders, and upon written notice thereof by the Swingline Lender to the Administrative Agent, the Lenders and the relevant Borrower, such Borrower shall be deemed to have requested a Floating Rate Advance in an amount equal to the Dollar Amount of such Swingline Loan and such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach of this Agreement by any Borrower or any of their respective Subsidiaries or any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement).
Appears in 3 contracts
Sources: Five Year Credit Agreement (Cardinal Health Inc), Five Year Credit Agreement (Cardinal Health Inc), Credit Agreement (Cardinal Health Inc)
(b). The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded Any assignment by a Floating Rate Advance from Lender shall (i) require the Lenders, execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and upon written notice thereof by the Swingline Lender substance satisfactory to the Administrative Agent, and acknowledged by the Lenders Administrative Agent, and the relevant Borrowerconsent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed and without limiting the foregoing right to not unreasonably withhold consent, may be withheld if the short-term unsecured debt rating of the proposed Lender is not at least “A-1” or the equivalent by S&P and “P-1” or the equivalent by ▇▇▇▇▇’▇ at the time of such Borrower shall assignment); (ii) if a partial assignment, be deemed to have requested a Floating Rate Advance in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the Dollar Amount assigning Committed Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iii) not be to a Defaulting Lender in a different Lender Group and (iv) require the delivery to the Administrative Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such Swingline Loan assignment, the same rights, benefits and such Floating Rate Advance obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to refund a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Committed ▇▇▇▇▇▇’s obligation to make Advances shall be several and not joint and shall be limited to such Swingline LoanCommitted Lender’s Pro Rata Share of the applicable Commitment. Any Swingline Loan outstanding in an Agreed Currency other than DollarsIn the event any Lender assigns or otherwise transfers all or any part of a Revolving Note, such Lender shall so notify the Borrower and the Administrative Agent and the Borrower shall, upon the giving request of such notice by the Swingline Lender, immediately execute new Revolving Notes in exchange for the Revolving Notes being assigned and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent shall record the assignment or other transfer in the Register. No assignment or transfer of a Revolving Note shall be effective unless such assignment or transfer is recorded in the Register. Notwithstanding the foregoing provisions of this Section 12.02(b), any Lender may, without consent from or notice to the Borrower or any of their respective Subsidiaries other party hereto, at any time pledge or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company assign all or any portion of its Subsidiaries; (D) any breach of such Lender’s rights under this Agreement by and the other Related Documents to any Borrower or any of their respective Subsidiaries Federal Reserve Bank or any other Lender; central banking authority having jurisdiction over such Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any holder or trustee of the foregoing (including without limitation such Lender’s securities; provided that no such pledge or assignment to any Borrower’s failure to satisfy any conditions contained in Article IV Federal Reserve Bank or any other provision central banking authority having jurisdiction over such Lender, holder or trustee shall release such Lender from such ▇▇▇▇▇▇’s obligations hereunder or under any other Related Document and no such holder or trustee shall be entitled to enforce any rights of this Agreement)such Lender hereunder unless such holder or trustee becomes a Lender hereunder through execution of an Assignment Agreement as set forth above.
Appears in 3 contracts
Sources: Receivables Funding and Administration Agreement (Td Synnex Corp), Receivables Funding and Administration Agreement (Td Synnex Corp), Receivables Funding and Administration Agreement (Td Synnex Corp)
(b). Any assignment by a Lender shall (i) require the execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and substance satisfactory to the Administrative Agent, and acknowledged by the Administrative Agent, and the consent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed and may be withheld if the short-term unsecured debt rating of the proposed Lender is not at least “A-1” or the equivalent by S&P and “P-1” or the equivalent by ▇▇▇▇▇’▇ at the time of such assignment); (ii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Committed Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iii) require the delivery to the Administration Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters, and (iv) other than in the case of an assignment by a Lender to one of its Affiliates or by a Discretionary Lender to a Committed Lender or to a Program Support Provider, include a payment to the Administrative Agent by the assignor or assignee Lender of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The Swingline assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Committed Lender’s obligation to make Revolving Credit Advances shall be several and not joint and shall be limited to such Committed Lender’s Pro Rata Share of the applicable Commitment. In the event any Lender assigns or otherwise transfers all or any part of a Revolving Note or the Swing Line Note, such Lender shall so notify the Borrower and the Borrower shall, upon the request of such Lender, execute new Revolving Notes or Swing Line Notes in exchange for the Revolving Notes or Swing Line Notes, as the case may be, being assigned. Notwithstanding the foregoing provisions of this Section 12.02(b), any Lender may at any time in its sole and absolute discretion require that pledge or assign all or any Swingline Loan be refunded by a Floating Rate Advance from the Lenders, and upon written notice thereof by the Swingline Lender to the Administrative Agent, the Lenders portion of such Lender’s rights under this Agreement and the relevant Borrowerother Related Documents to any Federal Reserve Bank or to any holder or trustee of such Lender’s securities; provided that no such pledge or assignment to any Federal Reserve Bank, holder or trustee shall release such Borrower Lender from such Lender’s obligations hereunder or under any other Related Document and no such holder or trustee shall be deemed entitled to have requested a Floating Rate Advance in an amount equal to the Dollar Amount enforce any rights of such Swingline Loan and Lender hereunder unless such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in holder or trustee becomes a Lender hereunder through execution of an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined Assignment Agreement as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach of this Agreement by any Borrower or any of their respective Subsidiaries or any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement)set forth above.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Synnex Corp)
(b). Any assignment by a Purchaser shall (i) unless (A) a Termination Event has occurred and is continuing or (B) the assignee is an Affiliate of a Purchaser, require the prior written consent of the Seller (which consent shall not be unreasonably withheld), (ii) if the assignee is an Affiliated Party require the prior written consent of the Administrative Agent; (iii) require the execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and substance satisfactory to the Purchaser Agent, and acknowledged by, the Purchaser Agent, a copy of which is delivered to the Seller and other than in the case of an assignment by a Purchaser to one of its Affiliates, the written consent of the Purchaser Agent (which consent shall not be unreasonably withheld) and, only if and so long as no Termination Event has occurred and is continuing, the Seller (which consent shall not be unreasonably withheld or delayed); (iv) if a partial assignment, (A) be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Purchaser shall have retained Commitments in an amount at least equal to $5,000,000 and (B) constitute a ratable assignment of the Revolving Purchaser Interest and the Term Purchaser Interest such that, after giving effect to such assignment, such assignee Purchaser’s and assignor Purchaser’s respective pro rata shares of Capital Investment in respect of the Revolving Purchaser Interest are equal to such assignee Purchaser’s and assignor Purchaser’s respective pro rata shares of the Capital Investment in respect of the Term Purchaser Interest; (v) require the delivery to the Seller and Purchaser Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters; (vi) other than in the case of an assignment by a Purchaser to one of its Affiliates, include a payment to the Purchaser Agent by the assignor or assignee Purchaser of an assignment fee of $3,500; and (vi) any assignment by a Non-Funding Purchaser (including to any Affiliate thereof) shall require the prior written consent of the Purchaser Agent. In the case of an assignment by a Purchaser under this Section 12.02, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Purchaser hereunder. The Swingline Lender assigning Purchaser shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Seller hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to a direct obligation of the Seller to the assignee and that the assignee shall thereupon be a “Purchaser” for all purposes. In all instances, each Purchaser’s obligation to make Purchases and maintain Capital Investment hereunder shall be several and not joint and shall be limited to such Purchaser’s Pro Rata Share of the applicable Commitment. Notwithstanding the foregoing provisions of this Section 12.02(b), any Purchaser may at any time in its sole and absolute discretion require that pledge or assign all or any Swingline Loan be refunded by a Floating Rate Advance from the Lenders, and upon written notice thereof by the Swingline Lender to the Administrative Agent, the Lenders portion of such Purchaser’s rights under this Agreement and the relevant Borrowerother Related Documents to any Federal Reserve Bank or to any holder or trustee of such Purchaser’s securities; provided, however, that no such Borrower pledge or assignment to any Federal Reserve Bank, holder or trustee shall release such Purchaser from such Purchaser’s obligations hereunder or under any other Related Document and no such holder or trustee shall be deemed entitled to have requested a Floating Rate Advance in an amount equal to the Dollar Amount enforce any rights of such Swingline Loan and Purchaser hereunder unless such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in holder or trustee becomes a Purchaser hereunder through execution of an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined Assignment Agreement as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach of this Agreement by any Borrower or any of their respective Subsidiaries or any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement)set forth above.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Univision Holdings, Inc.)
(b). The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded Any assignment by a Floating Rate Advance from Lender shall (i) require the Lenders, execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and upon written notice thereof by the Swingline Lender substance satisfactory to the Administrative Agent, and acknowledged by the Lenders Administrative Agent, and the relevant Borrowerconsent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed and without limiting the foregoing right to not unreasonably withhold consent, may be withheld if the short-term unsecured debt rating of the proposed Lender is not at least “A-1” or the equivalent by S&P and “P-1” or the equivalent by Moody’s at the time of such Borrower shall assignment); (ii) if a partial assignment, be deemed to have requested a Floating Rate Advance in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the Dollar Amount assigning Committed Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iii) not be to a Defaulting Lender in a different Lender Group and (iv) require the delivery to the Administrative Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such Swingline Loan assignment, the same rights, benefits and such Floating Rate Advance obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The 57 ▇▇▇▇▇▇▇▇ hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to refund a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Committed ▇▇▇▇▇▇’s obligation to make Advances shall be several and not joint and shall be limited to such Swingline LoanCommitted Lender’s Pro Rata Share of the applicable Commitment. Any Swingline Loan outstanding in an Agreed Currency other than DollarsIn the event any Lender assigns or otherwise transfers all or any part of a Revolving Note, such Lender shall so notify the Borrower and the Administrative Agent and the Borrower shall, upon the giving request of such notice by the Swingline Lender, immediately execute new Revolving Notes in exchange for the Revolving Notes being assigned and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent shall record the assignment or other transfer in the Register. No assignment or transfer of a Revolving Note shall be effective unless such assignment or transfer is recorded in the Register. Notwithstanding the foregoing provisions of this Section 12.02(b), any Lender may, without consent from or notice to the Borrower or any of their respective Subsidiaries other party hereto, at any time pledge or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company assign all or any portion of its Subsidiaries; (D) any breach of such Lender’s rights under this Agreement by and the other Related Documents to any Borrower or any of their respective Subsidiaries Federal Reserve Bank or any other Lender; central banking authority having jurisdiction over such Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any holder or trustee of the foregoing (including without limitation such Lender’s securities; provided that no such pledge or assignment to any Borrower’s failure to satisfy any conditions contained in Article IV Federal Reserve Bank or any other provision central banking authority having jurisdiction over such Lender, holder or trustee shall release such Lender from such ▇▇▇▇▇▇’s obligations hereunder or under any other Related Document and no such holder or trustee shall be entitled to enforce any rights of this Agreement)such Lender hereunder unless such holder or trustee becomes a Lender hereunder through execution of an Assignment Agreement as set forth above.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Td Synnex Corp)
(b). Any assignment by a Lender shall (i) require the execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and substance satisfactory to the Administrative Agent, and acknowledged by the Administrative Agent, and the consent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed and may be withheld if the short-term unsecured debt rating of the proposed Lender is not at least “A-1” or the equivalent by S&P and “P-1” or the equivalent by ▇▇▇▇▇’▇ at the time of such assignment); (ii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Committed Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iii) require the delivery to the Administration Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters, and (iv) other than in the case of an assignment by a Lender to one of its Affiliates or by a Discretionary Lender to a Committed Lender or to a Program Support Provider, include a payment to the Administrative Agent by the assignor or assignee Lender of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The Swingline assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Committed Lender’s obligation to make Advances shall be several and not joint and shall be limited to such Committed Lender’s Pro Rata Share of the applicable Commitment. In the event any Lender assigns or otherwise transfers all or any part of a Revolving Note, such Lender shall so notify the Borrower and the Borrower shall, upon the request of such Lender, execute new Revolving Notes in exchange for the Revolving Notes being assigned. Notwithstanding the foregoing provisions of this Section 12.02(b), any Lender may at any time in its sole and absolute discretion require that pledge or assign all or any Swingline Loan be refunded by a Floating Rate Advance from the Lenders, and upon written notice thereof by the Swingline Lender to the Administrative Agent, the Lenders portion of such Lender’s rights under this Agreement and the relevant Borrowerother Related Documents to any Federal Reserve Bank or to any holder or trustee of such Lender’s securities; provided that no such pledge or assignment to any Federal Reserve Bank, holder or trustee shall release such Borrower Lender from such Lender’s obligations hereunder or under any other Related Document and no such holder or trustee shall be deemed entitled to have requested a Floating Rate Advance in an amount equal to the Dollar Amount enforce any rights of such Swingline Loan and Lender hereunder unless such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in holder or trustee becomes a Lender hereunder through execution of an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined Assignment Agreement as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach of this Agreement by any Borrower or any of their respective Subsidiaries or any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement)set forth above.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Synnex Corp)
(b). The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded Any assignment by a Floating Rate Advance from Lender shall (i) require the Lenders, execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and upon written notice thereof by the Swingline Lender substance satisfactory to the Administrative Agent, and acknowledged by the Lenders Administrative Agent, and the relevant Borrowerconsent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed and may be withheld if the short-term unsecured debt rating of the proposed Lender is not at least “A-1” or the equivalent by S&P and “P-1” or the equivalent by ▇▇▇▇▇’▇ at the time of such Borrower shall assignment); (ii) if a partial assignment, be deemed to have requested a Floating Rate Advance in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the Dollar Amount assigning Committed Lender shall have retained Commitments in an amount at least equal to $5,000,000; and (iii) require the delivery to the Administrative Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such Swingline Loan assignment, the same rights, benefits and such Floating Rate Advance obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to refund a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Committed Lender’s obligation to make Advances shall be several and not joint and shall be limited to such Swingline LoanCommitted Lender’s Pro Rata Share of the applicable Commitment. Any Swingline Loan outstanding in an Agreed Currency other than DollarsIn the event any Lender assigns or otherwise transfers all or any part of a Revolving Note, such Lender shall so notify the Borrower and the Borrower shall, upon the giving request of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated execute new Revolving Notes in Dollars equal exchange for the Revolving Notes being assigned. Notwithstanding the foregoing provisions of this Section 12.02(b), any Lender may, without consent from or notice to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries other party hereto, at any time pledge or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company assign all or any portion of its Subsidiaries; (D) any breach of such Lender’s rights under this Agreement by and the other Related Documents to any Borrower Federal Reserve Bank or to any holder or trustee of their respective Subsidiaries such Lender’s securities; provided that no such pledge or assignment to any Federal Reserve Bank, holder or trustee shall release such Lender from such Lender’s obligations hereunder or under any other Lender; Related Document and no such holder or (E) trustee shall be entitled to enforce any other circumstance, happening rights of such Lender hereunder unless such holder or event whatsoever, whether or not similar to any trustee becomes a Lender hereunder through execution of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement)an Assignment Agreement as set forth above.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Synnex Corp)
(b). Any assignment by a Lender shall (i) require the execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and substance satisfactory to the Administrative Agent, and acknowledged by, the Administrative Agent and other than in the case of an assignment by a Lender to one of its Affiliates, the consent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed); (ii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iii) require the delivery to the Administration Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters, and (iv) other than in the case of an assignment by a Lender to one of its Affiliates, include a payment to the Administrative Agent by the assignor or assignee Lender of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The Swingline assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Lender’s obligation to make Revolving Credit Advances shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event any Lender assigns or otherwise transfers all or any part of a Revolving Note or the Swing Line Note, such Lender shall so notify the Borrower and the Borrower shall, upon the request of such Lender, execute new Revolving Notes or Swing Line Notes in exchange for the Revolving Notes or Swing Line Notes, as the case may be, being assigned. Notwithstanding the foregoing provisions of this Section 12.02(b), any Lender may at any time in its sole and absolute discretion require that pledge or assign all or any Swingline Loan be refunded by a Floating Rate Advance from the Lenders, and upon written notice thereof by the Swingline Lender to the Administrative Agent, the Lenders portion of such Lender’s rights under this Agreement and the relevant Borrowerother Related Documents to any Federal Reserve Bank or to any holder or trustee of such Lender’s securities; provided, however, that no such Borrower pledge or assignment to any Federal Reserve Bank, holder or trustee shall release such Lender from such Lender’s obligations hereunder or under any other Related Document and no such holder or trustee shall be deemed entitled to have requested a Floating Rate Advance in an amount equal to the Dollar Amount enforce any rights of such Swingline Loan and Lender hereunder unless such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in holder or trustee becomes a Lender hereunder through execution of an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined Assignment Agreement as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach of this Agreement by any Borrower or any of their respective Subsidiaries or any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement)set forth above.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Synnex Corp)
(b). The Swingline Lender may Borrower may, at any time in its sole expense and absolute discretion require effort, upon notice to such Lender and the Agent, replace such Lender by causing such Lender to assign its Loans and Commitments (with the assignment fee to be paid by the Borrower in such instance) pursuant to Section 11.08(a) to one or more other Lenders or Eligible Assignees procured by the Borrower; provided, however, that if the Borrower elects to exercise such right with respect to any Swingline Loan be refunded by Lender making a Floating Rate Advance from claim for compensation or payments under Section 4.01 or 4.03, the Lendersreplacement of such Lender will result in a reduction in such compensation or payments thereafter. The Lender shall have received payment in full of all principal, interest, fees and other amounts owing to such Lender through the date of replacement (including any amounts payable pursuant to Sections 4.01, 4.03 and 4.04), and upon written notice thereof the Borrower shall release such Lender from its obligations under the Loan Documents. Any Lender being replaced shall execute and deliver an Assignment and Assumption with respect to such ▇▇▇▇▇▇’s Commitments and outstanding Loans and participations in L/C Obligations and Swing Line Loans. Each party hereto agrees that (i) an assignment required pursuant to this Section 4.08 may be effected pursuant to an Assignment and Assumption executed by the Swingline Lender to the Administrative AgentBorrower, the Lenders Agent and the relevant Borrower, assignee and (ii) the Lender required to make such Borrower assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms thereof; provided, that, following the effectiveness of any such assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested a Floating Rate Advance by the applicable Lender; provided, further, that, any such documents shall be without recourse to or warranty by the parties thereto. Notwithstanding anything in an amount equal this Section 4.08 to the Dollar Amount of such Swingline Loan and such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitationcontrary, (A) the Lender that acts as the Issuing Bank may not be replaced hereunder at any setoff, counterclaim, recoupment, defense or other right which time it has any Letter of Credit outstanding hereunder unless arrangements satisfactory to such Lender has or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries or anyone else for any reason whatsoever ▇▇▇▇▇▇ (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence furnishing of a Default); backstop standby letter of credit in form and substance, and issued by an issuer, reasonably satisfactory to the Issuing Bank or the depositing of Cash Collateral into a Cash Collateral account in amounts and pursuant to arrangements reasonably satisfactory to the Issuing Bank) have been made with respect to such outstanding Letter of Credit and (B) the occurrence or continuance Lender that acts as the Agent may not be replaced hereunder except in accordance with the terms of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach of this Agreement by any Borrower or any of their respective Subsidiaries or any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement)10.06.
Appears in 1 contract
Sources: Credit Agreement (CBIZ, Inc.)
(b). The Swingline On each Settlement Date after the occurrence and during the continuance of an Event of Termination, absent written notice from the Required Lenders that such Advances shall not be made, each Conduit Lender may at any time (in its sole discretion) and absolute discretion require that any Swingline Loan be refunded by a Floating Rate Advance from the Lenders, and upon written notice thereof by the Swingline each Committed Lender shall (to the Administrative Agentextent any Conduit Lender in such Committed Lender’s Lender Group elects not to make such Advances) make Advances in an aggregate amount equal to all amounts described in the first through sixth clauses of Section 3.03(b) and all amounts related to independent directors’ fees described in the seventh clause of Section 3.03(b) which remain unpaid after the application of funds from Collections and Available Funds on deposit in the Collection Account pursuant to Section 3.03(b). Each Conduit Lender may make an Advance under this Section 1.01(c) in its sole discretion. If a Conduit Lender elects not to make such Advance, the Committed Lenders and the relevant Borrowerin such Conduit Lender’s Lender Group shall fund such Advance, such Borrower shall be deemed to have requested a Floating Rate Advance each in an amount equal to the Dollar Amount its respective Lender Group Pro Rata Share of such Swingline Loan and such Floating Rate Advance; provided, that no Advance shall be made by a Lender pursuant to refund this Section 1.01(c) to the extent the Required Lenders have provided written notice to the Administrative Agent that they will not make such Swingline LoanAdvances; provided, further, that no Advance shall be made by a Lender if, after giving effect thereto, (i) in respect of all Lenders, the then Total Outstanding Advances would exceed the Program Limit at such time or (ii) in respect of any Lender Group, the then aggregate outstanding Advances with respect to all Lenders in such Lender Group would exceed the Group Limit for such Lender Group at such time. Any Swingline Loan outstanding Advances made pursuant to this Section 1.01(c) shall constitute “Advances” as such term is used in this Agreement and shall be secured by the Collateral. Notwithstanding anything contained in this Agreement to the contrary, no Committed Lender shall be obligated to provide any Funding Agent, the Administrative Agent or Issuer with aggregate funds in connection with a Borrowing (x) after such Lender’s Facility Termination Date or (y) in an Agreed Currency other than Dollarsamount that would exceed such Committed Lender’s unused Commitment then in effect less any amounts advanced by such Committed Lender pursuant to a Program Support Agreement. The Indenture Trustee shall notify the Administrative Agent and the Funding Agents in writing two Business Days prior to each Settlement Date if the amounts on deposit in the Collection Account will be insufficient to pay in full the amounts described in the first through eighth clauses of Section 3.03(b). Each Funding Agent will promptly notify the Conduit Lenders in such Funding Agent’s Lender Group or the Committed Lenders in such Funding Agent’s Lender Group, shallas applicable, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount Funding Agent’s receipt of each any such Swingline Loan determined as of the date of such conversionnotice. Each Lender shall be absolutely and unconditionally obligated instruct its related Funding Agent as to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which whether such Lender has will fund the proposed Borrowing by telephone or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other telecopy by no later than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any close of its Subsidiaries; (D) business on the Business Day following its receipt of any breach of this Agreement by any Borrower or any of their respective Subsidiaries or any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement)such request.
Appears in 1 contract
(b). The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded Any assignment by a Floating Rate Advance from Lender shall (i) require the Lenders, execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and upon written notice thereof by the Swingline Lender substance satisfactory to the Administrative Agent, and acknowledged by the Lenders Administrative Agent, and the relevant Borrowerconsent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed and without limiting the foregoing right to not unreasonably withhold consent, may be withheld if the short-term unsecured debt rating of the proposed Lender is not at least “A-1” or the equivalent by S&P and “P-1” or the equivalent by Moody’s at the time of such Borrower shall assignment); (ii) if a partial assignment, be deemed to have requested a Floating Rate Advance in an amount at least equal to $5,000,000 and, after giving effect to 64 any such partial assignment, the Dollar Amount assigning Committed Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iii) not be to a Defaulting Lender in a different Lender Group and (iv) require the delivery to the Administrative Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such Swingline Loan assignment, the same rights, benefits and such Floating Rate Advance obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to refund a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Committed ▇▇▇▇▇▇’s obligation to make Advances shall be several and not joint and shall be limited to such Swingline LoanCommitted Lender’s Pro Rata Share of the applicable Commitment. Any Swingline Loan outstanding in an Agreed Currency other than DollarsIn the event any Lender assigns or otherwise transfers all or any part of a Revolving Note, such Lender shall so notify the Borrower and the Administrative Agent and the Borrower shall, upon the giving request of such notice by the Swingline Lender, immediately execute new Revolving Notes in exchange for the Revolving Notes being assigned and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent shall record the assignment or other transfer in the Register. No assignment or transfer of a Revolving Note shall be effective unless such assignment or transfer is recorded in the Register. Notwithstanding the foregoing provisions of this Section 12.02(b), any Lender may, without consent from or notice to the Borrower or any of their respective Subsidiaries other party hereto, at any time pledge or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company assign all or any portion of its Subsidiaries; (D) any breach of such Lender’s rights under this Agreement by and the other Related Documents to any Borrower or any of their respective Subsidiaries Federal Reserve Bank or any other Lender; central banking authority having jurisdiction over such Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any holder or trustee of the foregoing (including without limitation such Lender’s securities; provided that no such pledge or assignment to any Borrower’s failure to satisfy any conditions contained in Article IV Federal Reserve Bank or any other provision central banking authority having jurisdiction over such Lender, holder or trustee shall release such Lender from such ▇▇▇▇▇▇’s obligations hereunder or under any other Related Document and no such holder or trustee shall be entitled to enforce any rights of this Agreement)such Lender hereunder unless such holder or trustee becomes a Lender hereunder through execution of an Assignment Agreement as set forth above.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Td Synnex Corp)
(b). Any assignment by a Lender shall (i) require the consent of (A) the Administrative Agent and the execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 14.02(b) and otherwise in form and substance satisfactory to, and acknowledged by, the Administrative Agent and (B) so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed); (ii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iii) require the delivery to the Administration Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters, and (iv) include a payment to the Administrative Agent by the assignor or assignee Lender of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 14.02, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The Swingline assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 14.02(b) will give rise to a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Lender’s obligation to make Revolving Credit Advances and incur Letter of Credit Obligations hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event any Lender assigns or otherwise transfers all or any part of a Revolving Note or the Swing Line Note, such Lender shall so notify the Borrower and the Borrower shall, upon the request of such Lender, execute new Revolving Notes or Swing Line Notes in exchange for the Revolving Notes or Swing Line Notes, as the case may be, being assigned. Notwithstanding the foregoing provisions of this Section 14.02(b), any Lender may at any time in its sole and absolute discretion require that pledge or assign all or any Swingline Loan be refunded by a Floating Rate Advance from the Lenders, and upon written notice thereof by the Swingline Lender to the Administrative Agent, the Lenders portion of such Lender’s rights under this Agreement and the relevant Borrowerother Related Documents to a Federal Reserve Bank; provided, however, that no such Borrower pledge or assignment shall be deemed to have requested a Floating Rate Advance in an amount equal to the Dollar Amount of such Swingline Loan and such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which release such Lender has from such Lender’s obligations hereunder or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach of this Agreement by any Borrower or any of their respective Subsidiaries or under any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement)Related Document.
Appears in 1 contract
Sources: Receivables Funding Agreement (Ak Steel Holding Corp)
(b). Any assignment by a Lender shall (i) require the execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and substance satisfactory to the Administrative Agent, and acknowledged by, the Administrative Agent and other than in the case of an assignment by a Lender to one of its Affiliates, the consent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed); (ii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iii) require the delivery to the Administrative Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters, and (iv) other than in the case of an assignment by a Lender to one of its Affiliates, include a payment to the Administrative Agent by the assignor or assignee Lender of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The Swingline assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Lender’s obligation to make Revolving Credit Advances and incur Letter of Credit Obligations hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event any Lender assigns or otherwise transfers all or any part of a Revolving Note or the Swing Line Note, the Borrower shall, upon the request of such Lender, execute new Revolving Notes or Swing Line Notes in exchange for the Revolving Notes or Swing Line Notes, as the case may be, being assigned. Notwithstanding the foregoing provisions of this Section 12.02(b), any Lender may at any time in its sole and absolute discretion require that pledge or assign all or any Swingline Loan be refunded by a Floating Rate Advance from the Lenders, and upon written notice thereof by the Swingline Lender to the Administrative Agent, the Lenders portion of such Lender’s rights under this Agreement and the relevant Borrower, such Borrower shall be deemed to have requested a Floating Rate Advance in an amount equal to the Dollar Amount of such Swingline Loan and such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach of this Agreement by any Borrower or any of their respective Subsidiaries or any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar Related Documents to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement).Federal Reserve Bank or
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (RBS Global Inc)
(b). The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded Any assignment by a Floating Rate Advance from Lender shall (i) require the Lenders, execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and upon written notice thereof by the Swingline Lender substance satisfactory to the Administrative Agent, and acknowledged by, the Lenders Administrative Agent and other than in the relevant Borrowercase of an assignment by a Lender to one of its Affiliates, such the consent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be deemed to have requested unreasonably withheld or delayed); (ii) if a Floating Rate Advance partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the Dollar Amount assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iii) require the delivery to the Administrative Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters, and (iv) other than in the case of an assignment by a Lender to one of its Affiliates, include a payment to the Administrative Agent by the assignor or assignee Lender of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such Swingline Loan assignment, the same rights, benefits and such Floating Rate Advance obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to refund a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Lender’s obligation to make Revolving Credit Advances hereunder shall be several and not joint and shall be limited to such Swingline LoanLender’s Pro Rata Share of the applicable Commitment. Any Swingline Loan outstanding in an Agreed Currency other than DollarsIn the event any Lender assigns or otherwise transfers all or any part of a Revolving Note or the Swing Line Note, the Borrower shall, upon the giving request of such notice by the Swingline Lender, immediately and automatically be converted execute new Revolving Notes or Swing Line Notes in exchange for the Revolving Notes or Swing Line Notes, as the case may be, being assigned. Notwithstanding the foregoing provisions of this Section 12.02(b), each Lender may grant a security interest in, or otherwise assign as collateral, any of its rights under this Agreement, whether now owned or hereafter acquired (including rights to and redenominated in Dollars equal payments of principal or interest on the Loans), to the Dollar Amount of each such Swingline Loan determined as (i) any federal reserve bank (pursuant to Regulation A of the date Federal Reserve Board), without notice to Administrative Agent or (ii) any holder of, or trustee for the benefit of the holders of, such Lender’s Indebtedness or equity securities, by notice to Administrative Agent; provided, however, that no such holder or trustee, whether because of such conversion. Each grant or assignment or any foreclosure thereon (unless such foreclosure is made through an assignment in accordance with the above), shall be entitled to any rights of such Lender hereunder and no such Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage relieved of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach of this Agreement by any Borrower or any of their respective Subsidiaries or any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement)obligations hereunder.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Cumulus Media Inc)
(b). The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded Any assignment by a Floating Rate Advance from Purchaser shall (i) unless (A) a Termination Event has occurred and is continuing or (B) the Lendersassignee is an Affiliate of a Purchaser, and upon require the prior written notice thereof by the Swingline Lender to the Administrative Agent, the Lenders and the relevant Borrower, such Borrower shall be deemed to have requested a Floating Rate Advance in an amount equal to the Dollar Amount of such Swingline Loan and such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as consent of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation Seller (which consent shall not be affected by any circumstance, including, without limitationunreasonably withheld), (Aii) if the assignee is an affiliate of the Seller (including any setoffsponsor, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower portfolio company of any sponsor or any of their respective Subsidiaries Affiliates) require the prior written consent of the Administrative Agent; (iii) require the execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or anyone else for any reason whatsoever (including without limitation any failure otherwise in form and substance satisfactory to comply with the requirements Purchaser Agent, and acknowledged by, the Purchaser Agent, a copy of Section 4.2, which is delivered to the Seller and other than in the Swingline Lender making case of an assignment by a Swingline Loan when it had actual knowledge Purchaser to one of its Affiliates, the written consent of the existence of a DefaultPurchaser Agent (which consent shall not be unreasonably withheld) and, only if and so long as no Termination Event has occurred and is continuing, the Seller (which consent shall not be unreasonably withheld or delayed); (iv) if a partial assignment, (A) be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Purchaser shall have retained Commitments in an amount at least equal to $5,000,000 and (B) constitute a ratable assignment of the occurrence or continuance Revolving Purchaser Interest and the Term Purchaser Interest such that, after giving effect to such assignment, such assignee Purchaser’s and assignor Purchaser’s respective pro rata shares of a Default, subject Capital Investment in respect of the Revolving Purchaser Interest are equal to Section 2.1(b)(iii)such assignee Purchaser’s and assignor Purchaser’s respective pro rata shares of the Capital Investment in respect of the Term Purchaser Interest; (Cv) require the delivery to the Seller and Purchaser Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters; (vi) other than in the case of an assignment by a Purchaser to one of its Affiliates, include a payment to the Purchaser Agent by the assignor or assignee Purchaser of an assignment fee of $3,500; and (vi) any adverse change in assignment by a Non-Funding Purchaser (including to any Affiliate thereof) shall require the condition (financial or otherwise) prior written consent of the Company Purchaser Agent. In the case of an assignment by a Purchaser under this Section 12.02, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Purchaser hereunder. The assigning Purchaser shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Seller hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to a direct obligation of the Seller to the assignee and that the assignee shall thereupon be a “Purchaser” for all purposes. In all instances, each Purchaser’s obligation to make Purchases and maintain Capital Investment hereunder shall be several and not joint and shall be limited to such Purchaser’s Pro Rata Share of the applicable Commitment. Notwithstanding the foregoing provisions of this Section 12.02(b), any Purchaser may at any time pledge or assign all or any portion of its Subsidiaries; (D) any breach of such Purchaser’s rights under this Agreement by and the other Related Documents to any Borrower Federal Reserve Bank or to any holder or trustee of their respective Subsidiaries such Purchaser’s securities; provided, however, that no such pledge or assignment to any Federal Reserve Bank, holder or trustee shall release such Purchaser from such Purchaser’s obligations hereunder or under any other Lender; Related Document and no such holder or (E) trustee shall be entitled to enforce any other circumstance, happening rights of such Purchaser hereunder unless such holder or event whatsoever, whether or not similar to any trustee becomes a Purchaser hereunder through execution of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement)an Assignment Agreement as set forth above.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Univision Communications Inc)
(b). The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded Any assignment by a Floating Rate Advance from Lender shall (i) require the Lenders, execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and upon written notice thereof by the Swingline Lender substance satisfactory to the Administrative Agent, and acknowledged by the Lenders Administrative Agent, and the relevant Borrowerconsent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed and without limiting the foregoing right to not unreasonably withhold consent, may be withheld if the short-term unsecured debt rating of the proposed Lender is not at least “A-1” or the equivalent by S&P and “P-1” or the equivalent by Moody’s at the time of such Borrower shall assignment); (ii) if a partial assignment, be deemed to have requested a Floating Rate Advance in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the Dollar Amount assigning Committed Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iii) not be to a Defaulting Lender in a different Lender Group and (iv) require the delivery to the Administrative Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such Swingline Loan assignment, the same rights, benefits and such Floating Rate Advance obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to refund a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Committed Lender’s obligation to make Advances shall be several and not joint and shall be limited to such Swingline LoanCommitted Lender’s Pro Rata Share of the applicable Commitment. Any Swingline Loan outstanding in an Agreed Currency other than DollarsIn the event any Lender assigns or otherwise transfers all or any part of a Revolving Note, such Lender shall so notify the Borrower and the Administrative Agent and the Borrower shall, upon the giving request of such notice by the Swingline Lender, immediately execute new Revolving Notes in exchange for the Revolving Notes being assigned and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent shall record the assignment or other transfer in the Register. No assignment or transfer of a Revolving Note shall be effective unless such assignment or transfer is recorded in the Register. Notwithstanding the foregoing provisions of this Section 12.02(b), any Lender may, without consent from or notice to the Borrower or any of their respective Subsidiaries other party hereto, at any time pledge or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company assign all or any portion of its Subsidiaries; (D) any breach of such Lender’s rights under this Agreement by and the other Related Documents to any Borrower or any of their respective Subsidiaries Federal Reserve Bank or any other Lender; central banking authority having jurisdiction over such Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any holder or trustee of the foregoing (including without limitation such Lender’s securities; provided that no such pledge or assignment to any Borrower’s failure to satisfy any conditions contained in Article IV Federal Reserve Bank or any other provision central banking authority having jurisdiction over such Lender, holder or trustee shall release such Lender from such Lender’s obligations hereunder or under any other Related Document and no such holder or trustee shall be entitled to enforce any rights of this Agreement)such Lender hereunder unless such holder or trustee becomes a Lender hereunder through execution of an Assignment Agreement as set forth above.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Td Synnex Corp)
(b). The Swingline Lender may at any time In addition, notwithstanding anything contained in its sole and absolute discretion require that any Swingline Loan be refunded by a Floating Rate Advance from the Lenders, and upon written notice thereof by the Swingline Lender this Agreement to the Administrative Agentcontrary, Hardy or the Lenders and the relevant Borrower, such Borrower shall be deemed to have requested a Floating Rate Advance in an amount equal to the Dollar Amount of such Swingline Loan and such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation Seller shall not be affected required to pay an aggregate amount in excess of Eighteen Million Dollars ($18,000,000) (the “Cap”) in respect of all Losses incurred by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries or anyone else for any Buyer Indemnified Parties by reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence misrepresentation of a Default); (B) the occurrence or continuance of a DefaultHardy, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or the Seller, and the Buyer shall not be required to pay an aggregate amount in excess of the Cap in respect of all Losses incurred by the Seller Indemnified Parties by reason of the misrepresentation of the Buyer. No party to this Agreement shall have an obligation for indemnification under this Section 5 unless the aggregate Losses suffered by the Seller Indemnified Parties or Buyer Indemnified Parties, as the case may be, under Section 5.3 or 5.2, respectively, exceed Twenty-Five Thousand Dollars ($25,000) (the “Basket”). Losses to which the Basket applies, as described in the preceding sentence, are hereinafter referred to as the “Basket Losses” At such time as their Basket Losses exceed Twenty-Five Thousand Dollars ($25,000) in the aggregate, the Seller Indemnified Parties or Buyer Indemnified Parties, as applicable, shall be entitled to be indemnified against the full amount of all such Basket Losses that have been incurred or suffered by such indemnitees for which they are entitled to be indemnified under this Agreement (and not merely the portion of such Basket Losses exceeding Twenty-Five Thousand Dollars ($25,000). Notwithstanding anything to the contrary contained in this Section 5.6 the amount of indemnity payable (i) by Hardy and the Seller as a result of any Losses arising out of its Subsidiaries; Sections 3.1 (DOrganization, Standing and Power), 3.2 (Membership Interests), 3.4 (Authority: Binding Agreement), 3.7 (Intellectual Property), 3.9 (Contracts) any breach or 3.10 (Absence of Undisclosed Liabilities) of this Agreement shall not be subject to the Cap or the Basket; (ii) by Buyer as a result of any Borrower Losses arising out of Sections 4.1 (Organization, Standing and Power) or any of their respective Subsidiaries or any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement).4.2
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Iconix Brand Group, Inc.)
(b). The Swingline Lender Subject to the foregoing, Administrative Agent may at any time hold and, in its sole discretion, re-lend to Borrower for the account of such Defaulting Lender the amount of all such payments received and absolute discretion require retained by Administrative Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 3.09(b), such Defaulting Lender shall be deemed not to be a “Lender” and such ▇▇▇▇▇▇’s Commitment shall be deemed to be zero; provided, that the foregoing shall not apply to any Swingline Loan of the matters governed by Section 12.12(a)(i) through (iii). The provisions of this Section 3.02(g) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the Non-Defaulting Lenders, Administrative Agent, Issuing Bank, and Borrower shall have waived, in writing, the application of this Section 3.02(g) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Administrative Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Administrative Agent, provides adequate assurance of its ability to perform its future obligations hereunder (on which earlier date, so long as no Event of Default has occurred and is continuing, any remaining cash collateral held by Administrative Agent pursuant to Section 3.02(g)(ii) shall be refunded released to Borrower). The operation of this Section 3.02(g) shall not be construed to increase or otherwise affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrower of its duties and obligations hereunder to Administrative Agent, Issuing Bank, or to the Lenders other than such Defaulting Lender. Any failure by a Floating Rate Advance from the LendersDefaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrower, and at their option, upon written notice thereof by the Swingline Lender to the Administrative Agent, to arrange for a substitute ▇▇▇▇▇▇ to assume the Lenders and the relevant BorrowerCommitment of such Defaulting Lender, such Borrower substitute Lender to be reasonably acceptable to Administrative Agent. In connection with the arrangement of such a substitute ▇▇▇▇▇▇, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Assumption in favor of the substitute ▇▇▇▇▇▇ (and agrees that it shall be deemed to have requested a Floating Rate Advance executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (other than Bank Product Obligations, but including (1) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an amount equal to assumption of its Pro Rata Share of its participation in the Dollar Amount Letters of Credit); provided, that any such assumption of the Commitment of such Swingline Loan and such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Defaulting Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or deemed to constitute a waiver of any of their respective Subsidiaries the Lender Groups’ or anyone else for Borrower’s rights or remedies against any reason whatsoever (including without limitation any such Defaulting Lender arising out of or in relation to such failure to comply with fund. In the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence event of a Default); (B) direct conflict between the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach priority provisions of this Section 3.02(g) and any other provision contained in this Agreement by any Borrower or any of their respective Subsidiaries or any other Lender; or (E) any other circumstanceLoan Document, happening or event whatsoever, whether or not similar to any it is the intention of the foregoing (including without limitation parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Agreement)Section 3.02(g) shall control and govern.
Appears in 1 contract
Sources: Abl Credit and Guarantee Agreement (Janus International Group, Inc.)
(b). The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded Any assignment by a Floating Rate Advance from Lender shall (i) require the Lenders, execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and upon written notice thereof by the Swingline Lender substance satisfactory to the Administrative Agent, and acknowledged by the Lenders Administrative Agent, and the relevant Borrowerconsent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed and may be withheld if the short-term unsecured debt rating of the proposed Lender is not at least “A-1” or the equivalent by S&P and “P-1” or the equivalent by ▇▇▇▇▇’▇ at the time of such Borrower shall assignment); (ii) if a partial assignment, be deemed to have requested a Floating Rate Advance in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the Dollar Amount assigning Committed Lender shall have retained Commitments in an amount at least equal to $5,000,000; and (iii) require the delivery to the Administrative Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such Swingline Loan assignment, the same rights, benefits and such Floating Rate Advance obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to refund a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Committed Lender’s obligation to make Advances shall be several and not joint and shall be limited to such Swingline LoanCommitted Lender’s Pro Rata Share of the applicable Commitment. Any Swingline Loan outstanding in an Agreed Currency other than DollarsIn the event any Lender assigns or otherwise transfers all or any part of a Revolving Note, such Lender shall so notify the Borrower and the Borrower shall, upon the giving request of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated execute new Revolving Notes in Dollars equal exchange for the Revolving Notes being assigned. Notwithstanding the foregoing provisions of this Section 12.02(b), any Lender may, without consent from or notice to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries other party hereto, at any time pledge or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company assign all or any portion of its Subsidiaries; (D) any breach of such Lender’s rights under this Agreement by and the other Related Documents to any Borrower or any of their respective Subsidiaries Federal Reserve Bank or any other Lender; central banking authority having jurisdiction over such Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any holder or trustee of the foregoing (including without limitation such Lender’s securities; provided that no such pledge or assignment to any Borrower’s failure to satisfy any conditions contained in Article IV Federal Reserve Bank or any other provision central banking authority having jurisdiction over such Lender, holder or trustee shall release such Lender from such Lender’s obligations hereunder or under any other Related Document and no such holder or trustee shall be entitled to enforce any rights of this Agreement)such Lender hereunder unless such holder or trustee becomes a Lender hereunder through execution of an Assignment Agreement as set forth above.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Synnex Corp)
(b). Any assignment by a Lender shall (i) require the execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and substance satisfactory to the Administrative Agent, and acknowledged by, the Administrative Agent and other than in the case of an assignment by a Lender to one of its Affiliates, the consent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed); (ii) so long as no Termination Event or an Incipient Termination Event shall have occurred and be continuing, each assignee of a Lender (other than a SPV) shall require the approval by the Borrower, which approval shall not be unreasonably withheld or delayed; provided, further that assignments by a Lender to any Affiliate of the Agent or any Lenders shall not be subject to the consent of the Borrower; (iii) if a partial assignment, be in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the assigning Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iv) require the delivery to the Administration Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters, and (iv) other than in the case of an assignment by a Lender to one of its Affiliates, include a payment to the Administrative Agent by the assignor or assignee Lender of an assignment fee of $3,500. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such assignment, the same rights, benefits and obligations as it would if it were a Lender hereunder. The Swingline assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Lender’s obligation to make Revolving Credit Advances hereunder shall be several and not joint and shall be limited to such Lender’s Pro Rata Share of the applicable Commitment. In the event any Lender assigns or otherwise transfers all or any part of a Revolving Note or the Swing Line Note, such Lender shall so notify the Borrower and the Borrower shall, upon the request of such Lender, execute new Revolving Notes or Swing Line Notes in exchange for the Revolving Notes or Swing Line Notes, as the case may be, being assigned. Notwithstanding the foregoing provisions of this Section 12.02(b), any Lender may at any time in its sole and absolute discretion require that pledge or assign all or any Swingline Loan be refunded by a Floating Rate Advance from the Lenders, and upon written notice thereof by the Swingline Lender to the Administrative Agent, the Lenders portion of such Lender’s rights under this Agreement and the relevant Borrowerother Related Documents to any Federal Reserve Bank or to any holder or trustee of such Lender’s securities; provided, however, that no such Borrower pledge or assignment to any Federal Reserve Bank, holder or trustee shall release such Lender from such Lender’s obligations hereunder or under any other Related Document and no such holder or trustee shall be deemed entitled to have requested a Floating Rate Advance in an amount equal to the Dollar Amount enforce any rights of such Swingline Loan and Lender hereunder unless such Floating Rate Advance shall be made holder or trustee becomes a Lender hereunder through execution of an Assignment Agreement as set forth above. A Lender may not grant an assignment or participation to refund a Person who is (x) not a “United States person” (within the meaning of IRC Section 7701(a)(30) unless such Swingline Loan. Any Swingline Loan outstanding in an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined Person is exempt from United States withholding tax as of the date of such conversion. Each Lender shall be absolutely participation and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance orprovides a Form ▇-▇▇▇▇, if ▇-▇▇▇▇ or W-8IMY, as applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or any of their respective Subsidiaries or anyone else for any reason whatsoever (including without limitation any failure before giving effect to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach of this Agreement by any Borrower or any of their respective Subsidiaries or any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement)such assignment.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Vertis Inc)
(b). The Swingline No party hereto shall have any obligation whatsoever to initiate any such replacement or to assist in finding an Eligible Assignee. In addition, any Lender which is a Non-Defaulting Lender may at any time (but shall not be obligated to) in its sole discretion, acquire the face amount of all or a portion of such Defaulting Lender’s Commitment and absolute discretion require outstanding Loans via an assignment subject to and in accordance with the provisions of Section 13.6(b). In connection with any such assignment, such Defaulting Lender shall promptly execute all documents reasonably requested to effect such assignment, including an appropriate Assignment and Assumption and, in accordance with Section 13.6(b), shall pay to the Administrative Agent an assignment fee in the amount of $7,500, provided that any Swingline Loan be refunded failure by a Floating Rate Advance from Defaulting Lender to execute any such Assignment and Assumption shall not invalidate any such assignment. No such assignment shall be effective unless and until, in addition to the Lendersother conditions thereto set forth herein, the parties to the Assignment and Assumption shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon written notice distribution thereof as appropriate (which may be outright payment, purchases by the Swingline Lender to assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Administrative Agent, the Lenders and the relevant Borrower, such Borrower shall be deemed to have requested a Floating Rate Advance in an amount equal to the Dollar Amount of such Swingline Loan and such Floating Rate Advance shall be made to refund such Swingline Loan. Any Swingline Loan outstanding in an Agreed Currency other than Dollars, shall, upon the giving of such notice by the Swingline applicable Defaulting Lender, immediately and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its ’s Commitment Percentage of such Floating Rate Advance or, if applicableeach Class of Term Loans previously requested but not funded by the Defaulting Lender, to purchase a participation interest each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in the Swingline Loans pursuant full all payment liabilities then owed by such Defaulting Lender to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent or any Borrower or Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) such Defaulting Lender’s full Commitment Percentage of each Class of all outstanding Loans. Notwithstanding the foregoing, in the event that any assignment of their respective Subsidiaries or anyone else for rights and obligations of any reason whatsoever (including Defaulting Lender hereunder shall become effective under Applicable Law without limitation any failure to comply compliance with the requirements provisions of Section 4.2this paragraph, other than then the Swingline assignee of such interest shall be deemed to be a Defaulting Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company or any of its Subsidiaries; (D) any breach for all purposes of this Agreement by any Borrower or any of their respective Subsidiaries or any other Lender; or (E) any other circumstance, happening or event whatsoever, whether or not similar to any of the foregoing (including without limitation any Borrower’s failure to satisfy any conditions contained in Article IV or any other provision of this Agreement)until such compliance occurs.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Hudson Pacific Properties, L.P.)
(b). The Swingline Lender may at any time in its sole and absolute discretion require that any Swingline Loan be refunded Any assignment by a Floating Rate Advance from Lender shall (i) require the Lenders, execution of an assignment agreement (an “Assignment Agreement”) substantially in the form attached hereto as Exhibit 12.02(b) or otherwise in form and upon written notice thereof by the Swingline Lender substance satisfactory to the Administrative Agent, and acknowledged by the Lenders Administrative Agent, and the relevant Borrowerconsent of the Administrative Agent and, so long as no Termination Event has occurred and is continuing, the Borrower (which consent shall not be unreasonably withheld or delayed and without limiting the foregoing right to not unreasonably withhold consent, may be withheld if the short-term unsecured debt rating of the proposed Lender is not at least “A-1” or the equivalent by S&P and “P-1” or the equivalent by ▇▇▇▇▇’▇ at the time of such Borrower shall assignment); (ii) if a partial assignment, be deemed to have requested a Floating Rate Advance in an amount at least equal to $5,000,000 and, after giving effect to any such partial assignment, the Dollar Amount assigning Committed Lender shall have retained Commitments in an amount at least equal to $5,000,000; (iii) not be to a Defaulting Lender in a different Lender Group and (iv) require the delivery to the Administrative Agent by the assignee or participant, as the case may be, of any forms, certificates or other evidence with respect to United States tax withholding matters. In the case of an assignment by a Lender under this Section 12.02, the assignee shall have, to the extent of such Swingline Loan assignment, the same rights, benefits and such Floating Rate Advance obligations as it would if it were a Lender hereunder. The assigning Lender shall be relieved of its obligations hereunder with respect to its Commitments or assigned portion thereof from and after the date of such assignment. The Borrower hereby acknowledges and agrees that any assignment made in accordance with this Section 12.02(b) will give rise to refund a direct obligation of the Borrower to the assignee and that the assignee shall thereupon be a “Lender” for all purposes. In all instances, each Committed Lender’s obligation to make Advances shall be several and not joint and shall be limited to such Swingline LoanCommitted Lender’s Pro Rata Share of the applicable Commitment. Any Swingline Loan outstanding in an Agreed Currency other than DollarsIn the event any Lender assigns or otherwise transfers all or any part of a Revolving Note, such Lender shall so notify the Borrower and the Administrative Agent and the Borrower shall, upon the giving request of such notice by the Swingline Lender, immediately execute new Revolving Notes in exchange for the Revolving Notes being assigned and automatically be converted to and redenominated in Dollars equal to the Dollar Amount of each such Swingline Loan determined as of the date of such conversion. Each Lender shall be absolutely and unconditionally obligated to fund its Commitment Percentage of such Floating Rate Advance or, if applicable, to purchase a participation interest in the Swingline Loans pursuant to Section 2.1(b)(iii) and such obligation shall not be affected by any circumstance, including, without limitation, (A) any setoff, counterclaim, recoupment, defense or other right which such Lender has or may have against the Administrative Agent shall record the assignment or other transfer in the Register. No assignment or transfer of a Revolving Note shall be effective unless such assignment or transfer is recorded in the Register. Notwithstanding the foregoing provisions of this Section 12.02(b), any Lender may, without consent from or notice to the Borrower or any of their respective Subsidiaries other party hereto, at any time pledge or anyone else for any reason whatsoever (including without limitation any failure to comply with the requirements of Section 4.2, other than the Swingline Lender making a Swingline Loan when it had actual knowledge of the existence of a Default); (B) the occurrence or continuance of a Default, subject to Section 2.1(b)(iii); (C) any adverse change in the condition (financial or otherwise) of the Company assign all or any portion of its Subsidiaries; (D) any breach of such Lender’s rights under this Agreement by and the other Related Documents to any Borrower or any of their respective Subsidiaries Federal Reserve Bank or any other Lender; central banking authority having jurisdiction over such Lender or (E) any other circumstance, happening or event whatsoever, whether or not similar to any holder or trustee of the foregoing (including without limitation such Lender’s securities; provided that no such pledge or assignment to any Borrower’s failure to satisfy any conditions contained in Article IV Federal Reserve Bank or any other provision central banking authority having jurisdiction over such Lender, holder or trustee shall release such Lender from such Lender’s obligations hereunder or under any other Related Document and no such holder or trustee shall be entitled to enforce any rights of this Agreement)such Lender hereunder unless such holder or trustee becomes a Lender hereunder through execution of an Assignment Agreement as set forth above.
Appears in 1 contract
Sources: Receivables Funding and Administration Agreement (Td Synnex Corp)