Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(c) apply to a requested Borrowing as described in subsection 2.2(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 p.m. (Boston, Massachusetts time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 2:00 p.m. (Boston, Massachusetts time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to the provisions of subsection 2.2(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date. (ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date. (iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Ultimate Electronics Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(e) apply to a requested Borrowing as described in subsection 2.2(bSection 2.1(d), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(c), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Accountsuch account of Agent as Agent may designate, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, Agent shall make the proceeds thereof of such Advances available to Administrative Borrower Borrowers on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by Agent to Administrative Borrower’s the Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(k), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit such Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has shall have made available to Borrowers such amount, that Revolving Credit then such Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Agent such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing Funding Date for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower Borrowers of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate then applicable at the time to the Advances composing such BorrowingAdvances. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any such Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zerozero (-0-). This Section section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (y) the requisite non-Defaulting Lenders, Agent, Lenders and Administrative Borrower Agent shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender Borrower of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (General Datacomm Industries Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(c) apply to a requested Borrowing as described in subsection 2.2(b), then promptly Promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(g) in excess of $5,000,000 or otherwise at the Agent’s election in accordance with Section 2.1(f), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelephone, telephoneand promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro Rata Share of the requested Borrowing available to the Agent in immediately available same day funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 12:00 p.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After the Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, the Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative Borrower’s the Designated Account; provided, however, that, subject to the provisions of subsection 2.2(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.,
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Restatement Date or, with respect to any Borrowing after the Closing Restatement Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount Lender’s Pro Rata Share available to Agent in immediately available funds on the applicable Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender (including any Deteriorating Lender) shall not have made its full amount Pro Rata Share of such Borrowing available to Agent in immediately available funds on such Funding Date and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day immediately following such Funding Date make its Pro Rata Share of such amount Borrowing available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during or portion thereof from such periodFunding Date to the day on which such Lender has so paid Agent. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts (including interest) owing under this subsection shall be conclusive, absent manifest error. If such amount Lender’s Pro Rata Share of such Borrowing, plus any accrued interest payable by such Lender to Agent thereon, is so made available, paid to Agent by such Lender such payment (excluding interest) to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Funding Date for such Borrowing for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower Borrowers of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSection 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such AdvancesAdvances (or the Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to AgentAgent and Borrowers. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that Agent shall elect Swing Lender is not obligated to have the terms of this subsection 2.2(c) apply to make a requested Borrowing as described in subsection 2.2(b)Swing Loan, then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a)(i), Agent shall notify the Revolving Credit Lenders, not later than 3:00 p.m. (Boston, Massachusetts time) on the Business Day immediately preceding the Funding Date applicable thereto, Lenders by facsimiletelecopy, telephone, email, or other similar electronic form of transmission, of the requested Borrowing; such notification to be sent on the Business Day or U.S. Government Securities Business Day, as applicable, that is (A) in the case of a Base Rate Loan, at least one Business Day prior to the requested Funding Date, or (B) in the case of a SOFR Loan, prior to 2:00 p.m. at least three (3) U.S. Government Securities Business Days prior to the requested Funding Date. Each Revolving Credit If Agent has notified the Lenders of a requested Borrowing on the Business Day that is one Business Day prior to the Funding Date, then each Lender shall make the amount of such Revolving Credit Lender’s ▇▇▇▇▇▇'s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 1:00 p.m. (Boston, Massachusetts time) on the Business Day that is the requested Funding Date applicable theretoDate. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of Advances from the applicable conditions precedent set forth in Section 3 hereofLenders, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s the Designated Account; provided, however, that, that subject to the provisions of subsection 2.2(iSection 2.3(d)(ii), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the an obligation to makemake any Advance, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to 12:30 p.m. on the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior that is the requested Funding Date relative to a requested Borrowing as to which Agent has notified the date Lenders of such Borrowing, a requested Borrowing that such Revolving Credit Lender ▇▇▇▇▇▇ will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s ▇▇▇▇▇▇'s Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date Borrower a corresponding amount. If and to If, on the extent requested Funding Date, any Revolving Credit Lender shall not have made its remitted the full amount that it is required to make available to Agent in immediately available funds and if Agent in such circumstances has made available to Borrowers Borrower such amountamount on the requested Funding Date, that Revolving Credit then such Lender shall make the amount of such ▇▇▇▇▇▇'s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent's Account, no later than 1:00 p.m. on the Business Day following such that is the first Business Day after the requested Funding Date (in which case, the interest accrued on such ▇▇▇▇▇▇'s portion of such Borrowing for the Funding Date shall be for Agent's separate account). If any Lender shall not remit the full amount that it is required to make available to Agent in immediately available funds as and when required hereby and if Agent has made available to Borrower such amount, then that Lender shall be obligated to immediately remit such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during until the date on which such periodamount is so remitted. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection Section 2.3(c)(ii) shall be conclusive, absent manifest error. If such the amount that a Lender is so required to remit is made availableavailable to Agent, then such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such BorrowingBorrowing (it being understood that the amount of such interest shall be payable only once). The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such any Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSection -------------- ------- 2.3(b), ------ then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 -------------- p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such AdvancesAdvances or the Term Loan, as applicable, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to --------- Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(i), -------- ------- -------------- Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be --------- satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's portion of the requested Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make its portion of any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an available its portion of the requested Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make available its portion of the requested Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's portion of the Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any -------- ------- ------- such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Friede Goldman Halter Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(e) apply to a requested Borrowing as described in subsection 2.2(bSection 2.1(d), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(c), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Accountsuch account of Agent as Agent may designate, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(k), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedwaived by Agent, or (2) the requested Borrowing would exceed the Excess Availability of the Borrower requesting the Advance on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-re- lend to Borrowers for the account of such Defaulting Lender Borrower the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zerozero (-0-). This Section section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (y) the requisite non-Defaulting Lenders, Agent, Lenders and Administrative Borrower Agent shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender Borrower of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Southwest Royalties Holdings Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(f) apply to a requested Borrowing in excess of $5,000,000 as described in subsection 2.2(bSection 2.1(e), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(d), Agent shall notify the Revolving Credit Tranche A Lenders, not later than 3:00 4:00 p.m. (BostonAtlanta, Massachusetts Georgia time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Tranche A Lender shall make the amount of such Revolving Credit Tranche A Lender’s Pro 's Tranche A Pro-Rata Share of the requested Borrowing available to Agent in immediately available same day funds, to Agent’s Accountsuch account of Agent as Agent may designate, not later than 2:00 3:00 p.m. (BostonAtlanta, Massachusetts Georgia time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by Agent to Administrative Borrower’s the Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(l), the Agent shall not request any Revolving Credit Tranche A Lender to make, and no Revolving Credit Tranche A Lender shall have the obligation to make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Tranche A Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Tranche A Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Tranche A Lender’s Pro 's Tranche A Pro-Rata Share of the Borrowing, Agent may assume that each Revolving Credit Tranche A Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSection 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts time) on the Business Day immediately preceding (or, in the case of LIBO Rate Loans, three Business Days prior to the date) that is the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 3:00 p.m. (Boston, Massachusetts time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to the Administrative Borrower by no later than 3:00 p.m. (Boston, Massachusetts time) on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to the Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify the Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by the Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and the Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ia) In the event that Agent Each borrowing of Advances shall elect be advanced in accordance with Section 2.1 (subject to have the any contrary terms of this subsection 2.2(cSection 2.9 and Section 2.10(c)).
(b) apply to a requested Borrowing as described in subsection 2.2(b), then promptly Promptly after receipt by Agent of a request or a deemed request for a Borrowing an Advance pursuant to subsection 2.2(a)Section 2.2, Agent shall notify the Revolving Credit Lenders, not later than 3:00 p.m. (Boston, Massachusetts time) on Lenders of its receipt of such request specifying the Business Day immediately preceding information provided by Borrowing Agent and the Funding Date applicable thereto, by facsimile, telephone, or other similar form of transmission, apportionment among Lenders of the requested BorrowingAdvance as determined by Agent in accordance with the terms hereof. Each Revolving Credit Lender shall remit the principal amount of each Advance to the Borrowing Agent’s Account in U.S. Dollars and immediately available funds prior to the close of business, on the applicable borrowing date.
(c) Unless Agent shall have been notified by telephone, confirmed in writing, by any Lender or by Borrowing Agent that such Lender will not or did not make the amount of such Revolving Credit Lender’s Pro Rata Share which would constitute its applicable share of the requested Borrowing Advance available to Agent in immediately available funds, to the Borrowing Agent’s Account, not later than 2:00 p.m. (Boston, Massachusetts time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to the provisions of subsection 2.2(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon obligated to) assume that such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to AgentBorrowing Agent on such date in accordance with Section 2.4(b). Agent will promptly notify Borrowing Agent of its receipt of any such notice from a Lender.
(d) If any Lender or Participant (a “Benefited Lender”) shall at any time receive any payment of all or part of its Advances, together with or interest at the Defaulting Lender Rate for each day during such period. A notice submitted thereon, or receive any Collateral in respect thereof (whether voluntarily or involuntarily or by Agent to set-off) in a greater proportion than any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute and Collateral received by any other Lender, if any, in respect of such Revolving Credit other Lender’s Advance on the date Advances, or interest thereon, and such greater proportionate payment or receipt of Borrowing for all purposes of this Agreement. If such amount Collateral is not made available expressly permitted hereunder, such Benefited Lender shall purchase for cash from the other Lenders a participation in such portion of each such other Lender’s Advances, or shall provide such other Lender with the benefits of any such Collateral, or the proceeds thereof, as shall be necessary to Agent on cause such Benefited Lender to share the Business Day following the Funding Date, Agent will notify Administrative Borrower excess payment or benefits of such failure to fund andCollateral or proceeds ratably with each of the other Lenders; provided, upon demand by Agenthowever, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date that if all or any portion of such Borrowingexcess payment or benefits is thereafter recovered from such Benefited Lender, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender purchase shall be responsible for rescinded, and the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefitpurchase price and benefits returned, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that of such Defaulting Lender’s Advance was funded by recovery, but without interest. Each Borrower consents to the other members of the Lender Group) orforegoing and agrees, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting it may effectively do so under Applicable Law, that each Lender so purchasing a portion of another Lender’s Advance was not funded by the Lender Group), retain same to be reAdvances may exercise all rights of payment (including rights of set-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective off) with respect to such Defaulting portion as fully as if such Lender until (x) were the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agentdirect holder of such portion, and Administrative Borrower shall have waived the obligations owing to each such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting purchasing Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment such participation and such purchased portion of any Revolving Credit other Lender’s Advances shall be part of the Obligations secured by the Collateral, and the obligations owing to relieve or excuse the performance by each such Defaulting purchasing Lender or in respect of such participation and such purchased portion of any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender ’s Advances shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor part of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of Obligations secured by the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fundCollateral.
Appears in 1 contract
Sources: Loan and Security Agreement (Boomerang Systems, Inc.)
Making of Advances. (i) In the event that the Facility Agent shall elect (or pursuant to Section 2.1(e) shall be compelled) to have the terms of this subsection 2.2(cSection 2.1(f) apply to a requested Borrowing as described in subsection 2.2(bSection 2.1(e), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(d), the Facility Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro 's Pro-Rata Share of the requested Borrowing available to the Facility Agent in immediately available same day funds, to Agent’s Accountsuch account of the Facility Agent as the Facility Agent may designate, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After the Facility Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, the Facility Agent shall make the proceeds thereof of such Advances available to Administrative Borrower not later than 11:00 a.m. (California time) on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Facility Agent to Administrative Borrower’s the Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(l), the Facility Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Facility Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Facility Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Facility Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s Pro 's Pro-Rata Share of the Borrowing, Facility Agent may assume that each Revolving Credit Lender has made or will make such amount available to Facility Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.immediately
Appears in 1 contract
Sources: Loan and Security Agreement (Los Buenos Leasing Co Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSection -------------- ------- 2.3(b), then promptly after receipt of a request for a Borrowing ------ pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, not later -------------- than 3:00 4:00 p.m. (Boston, Massachusetts Georgia time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 1:00 p.m. (Boston, Massachusetts Georgia time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, --------- Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, -------- ------- subject to the provisions of subsection 2.2(iSection 2.3(i), Agent shall not request -------------- any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not --------- be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such -------- ------- ------- assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSection -------------- ------- 2.3(b), then promptly after receipt of a request for a Borrowing pursuant ------ to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. -------------- (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, Advances upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall --------- make the proceeds thereof available to Administrative the applicable Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative the applicable Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection -------- ------- ------- 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall ------ have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for --------- the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower Borrowers of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower Borrowers and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative the applicable Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower Parent at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, -------- ------- ------- that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that Administrative Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(e) apply to a requested Borrowing as described in subsection 2.2(bSection 2.1(d), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(c), the Administrative Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable theretothereto or such other time that is agreed upon by Administrative Agent and the Lenders, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Administrative Agent in immediately available funds, to Agent’s Accountsuch account of Administrative Agent as Administrative Agent may designate, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable theretothereto or such other time that is agreed upon by Administrative Agent and the Lenders. After Administrative Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 Sections 3.1 and 3.2 hereof, Administrative Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by Administrative Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(k), Administrative Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Administrative Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 and 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedcured (if capable of being cured) or waived in accordance with Section 16.1, or (2) the requested Borrowing would exceed the Excess Availability of Borrower on such Funding Date.
(ii) Unless Administrative Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Administrative Agent for the account of Borrowers Borrower the amount of that Revolving Credit such Lender’s 's Pro Rata Share of the Borrowing, Administrative Agent may assume that each Revolving Credit Lender has made or will make such amount available to Administrative Agent in immediately available funds on the Funding Date or such other time that is agreed upon by Administrative Agent and the Lenders and Administrative Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Administrative Agent in immediately available funds at the time required by this Section 2.1(e) and Administrative Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit then such Lender shall on the Business Day following such Funding Date or on the Business Day following such other time that is agreed upon by Administrative Agent and the Lenders make such amount available to Administrative Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice submitted by the Administrative Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made availablepaid to the Administrative Agent, such payment to Administrative Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing Funding Date for all purposes of this Agreement. If such amount is not made available to the Administrative Agent on the Business Day following the Funding DateDate or on the Business Day following such other time that is agreed upon by the Administrative Agent and the Lenders, Administrative Agent will notify Administrative Borrower of such failure to fund and, upon demand by Administrative Agent, Borrowers Borrower shall pay such amount to Administrative Agent for Administrative Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate then applicable at the time to the Advances composing such BorrowingAdvances. The failure of any Revolving Credit Lender to make any Advance on any Funding Date or such other time that is agreed upon by the Administrative Agent and the Lenders shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding DateDate or such other time that is agreed upon by Administrative Agent and the Lenders, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding DateDate or such other time that is agreed upon by Administrative Agent and the Lenders.
(iii) Administrative Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Administrative Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed or retained by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Administrative Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender Borrower the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.a
Appears in 1 contract
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSECTION 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSECTION 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSECTION 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 12:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such AdvancesAdvances (or the Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section SECTION 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower Borrowers on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Borrowers' Designated Account; providedPROVIDED, howeverHOWEVER, that, subject to the provisions of subsection 2.2(iSECTION 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower Borrowers and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their its duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower Borrowers at its their option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided furtherPROVIDED FURTHER, howeverHOWEVER, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Dairy Mart Convenience Stores Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(e) apply to a requested Borrowing as described in subsection 2.2(b--------------
Section 2.1 (d), then promptly after receipt of a request for a Borrowing -------------- pursuant to subsection 2.2(aSection 2.1(c), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 -------------- p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Accountsuch account of Agent as Agent may designate, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 --------- hereof, Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(k), Agent shall not -------------- request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the --------- requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability of Borrower on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Initial Advance Effective Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender Borrower the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zerozero (-0-). This Section section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (y) the requisite non-Defaulting Lenders, Agent, Lenders and Administrative Borrower Agent shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender Borrower of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Convergent Communications Inc /Co)
Making of Advances. (i) In the event that the Agent shall elect (or pursuant to Section 2.1(e) shall be compelled) to have the terms of this subsection 2.2(cSection 2.1(f) apply to a requested Borrowing as described in subsection 2.2(bSection 2.1(e), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(d), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro 's Pro-Rata Share of the requested Borrowing available to the Agent in immediately available same day funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After the Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, the Agent shall make the proceeds thereof of such Advances available to Administrative Borrower not later than 11:00 a.m. (California time) on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative Borrower’s the Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(l), the Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s Pro 's Pro-Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has Schedule 1, Pg. 29 36 made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Agent such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Any Lender that fails to make any Advance that it is required to make hereunder on any Funding Date and that has not cured such failure by making such Advance within one Business Day after written demand upon it by Agent to do so, shall not relieve any other Revolving Credit Lender constitute a "Defaulting Lender" for purposes of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender this Agreement and shall be responsible for the failure of any other Revolving Credit Lender to make the Advance continue to be made by a Defaulting Lender until such other Revolving Credit Lender on any Funding DateAdvance is made.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same Agent to be re-advanced applied first to Borrowers as if any amounts owing to Agent by such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, (including interest thereon as provided in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received this Agreement) and retained by it for the account of such Defaulting Lenderthereafter as provided under Sections 2.1(i)(iii) or 2.5(b). Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments (other than matters described in Section 16.1, for which the consent of all Lenders including such Defaulting Lender must still be obtained) and determining Pro-Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Defaulting Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (xA) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (yB) the requisite non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit non-Defaulting Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender Borrower of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Vermont Transit Co Inc)
Making of Advances. (i) In the event that the Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(f) apply to a requested Borrowing in excess of $5,000,000 as described in subsection 2.2(bSection 2.1(e), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(d), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to the Agent in immediately available same day funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 12:00 p.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After the Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, the Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative Borrower’s the Designated Deposit Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(l), the Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Agent such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date. Any Lender that fails to make any Advance that it is required to make hereunder on any Funding Date and that has not cured such failure by making such Advance within one Business Day after written demand upon it by Agent to do so, shall constitute a "Defaulting Lender" for purposes of this Agreement until such Advance is made.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender Borrower the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Defaulting Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (xA) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (yB) the requisite non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit non-Defaulting Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers Borrower of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Factory Card Outlet Corp)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection Section 2.2(c) apply to a requested Borrowing as described in subsection Section ------------- ------- 2.2(b), then promptly after receipt of a request for a Borrowing pursuant ------ to subsection Section 2.2(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. -------------- (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall --------- make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection Section -------- ------- ------- 2.2(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall ------ have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for --------- the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided -------- further, however, that any such assumption of the Revolving Credit Commitment of such ------- ------- Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSECTION 2.1(D) apply to a requested Borrowing as described in subsection 2.2(bSECTION 2.1(C), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSECTION 2.1(B), Agent shall notify the Revolving Credit Lenderseach Lender that has any Commitment to make Advances, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephone, telecopy or other similar form of transmission, of the requested Borrowing. Each Revolving Credit such Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share Portion (Advances) of the requested Borrowing available to Agent in immediately available funds, to Agent’s Accountsuch account of Agent as Agent may designate, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section SECTION 3 hereof, Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by Agent to Administrative Borrower’s 's Designated Account; providedPROVIDED, howeverHOWEVER, that, subject to the provisions of subsection 2.2(i), Agent shall not request any Revolving Credit Lender to make, and that no Revolving Credit such Lender shall have the obligation to make, make any Advance if Agent and each other such Lender shall have actual knowledge received written notice given in good faith by any such Lender on or before 5:00 p.m. (California time) on the Business Day immediately prior to the applicable Funding Date that (1) one or more of the applicable conditions precedent set forth in Section SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2) the requested Borrowing would exceed the Excess Availability of Borrower on such Funding DateDate (any such notice timely received by Agent from any such Lender being an "Advance Funding Blockage Notice").
(ii) Unless Agent and each other such Lender receives notice an Advance Funding Blockage Notice from a Revolving Credit any such Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one no later than 5:00 p.m. (1California time) on the Business Day immediately prior to the date of such Borrowingapplicable Funding Date, stating that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share Portion (Advances) of the Borrowing, Agent may assume that each Revolving Credit such Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit such Lender shall not have made its full amount available to Agent in immediately available funds (unless such failure arises from such Lender's Advance Funding Blockage Notice timely received by Agent) and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice submitted by Agent to any Revolving Credit such Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit such Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit such Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit other such Lender shall be responsible for the failure of any other Revolving Credit such Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Unless and until the amount owing by any Defaulting Lender pursuant to the second sentence of SECTION 2.1(D)(II) has been paid by Borrower or such Defaulting Lender, Agent shall not be obligated to transfer to a such Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or's benefit, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if nor shall such Defaulting Lender had made Advances to Borrowers. Subject be entitled to the foregoing, sharing of any payments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender Borrower the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Required Lenders, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit Commitment 's Pro Rata Portion (Total) shall be deemed to be zerozero (-0-). This Section section shall remain effective with respect to such Defaulting Lender until (x) the Obligations and the Term Loan A Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-amount owing by such Defaulting Lenders, Agent, and Administrative Lender pursuant to the second sentence of SECTION 2.1(D)(II) has been paid by Borrower shall have waived or such Defaulting Lender’s default in writing, or (z) the requisite non- Defaulting Lender makes its Pro Rata Share of the applicable Advance Lenders with Commitments to make Advances and pays to Agent all amounts owing by Defaulting Lender shall have waived such Lender's default in respect thereofwriting. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit LenderLender to make Advances, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender Borrower of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Cai Wireless Systems Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSection 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such AdvancesAdvances (or Term Loans, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance (or its portion of the Term Loans) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedwaived (in accordance with Section 15.1 hereof), or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance or Term Loan on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance or Term Loan on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance or Term Loan to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance or Term Loan was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower Parent and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower Parent shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance or Term Loan and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower Parent at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Outsourcing Services Group Inc)
Making of Advances. (ia) In the event that Agent Each Borrowing shall elect to have the terms of this subsection 2.2(c) apply to a requested Borrowing as described in subsection 2.2(b)be made on notice, then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(a), Agent shall notify the Revolving Credit Lenders, given not later than 3:00 p.m. (Bostonx) 1:00 P.M. (New York City time, Massachusetts or, in the case of a Borrowing in an Alternate Currency, London time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 2:00 p.m. third (Boston, Massachusetts time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to the provisions of subsection 2.2(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect in the case of a Borrowing to any Borrowing after the Closing Datebe denominated in an Alternate Currency, at least one (1fourth) Business Day prior to the date of a Eurocurrency Rate Advance Borrowing, and (y) 1:00 P.M. (New York City time) on the day of a Base Rate Advance Borrowing, by the Borrower to the Administrative Agent, which shall give to each Lender prompt notice thereof by telecopier, telex or cable. Each notice of a Borrowing (a "Notice of Borrowing") shall be made in writing, or orally and confirmed immediately in writing, by telecopier, telex or cable, in substantially the form of Exhibit B hereto, specifying therein the requested (i) date of such Borrowing (which shall be a Business Day), (ii) Currency and Type of Advance comprising such Borrowing, that (iii) aggregate amount of such Revolving Credit Borrowing and (iv) in the case of a Borrowing comprised of Eurocurrency Rate Advances, the Interest Period for each such Advance. Each Lender will not shall (A) before 11:00 A.M. Local Time on the date of such Borrowing (in the case of a Eurocurrency Rate Advance) and (B) before 1:00 P.M. (New York City time) on the date of such Borrowing (in the case of a Base Rate Advance), make available as and when required hereunder to Agent for the account of Borrowers its Applicable Lending Office to the amount Administrative Agent at the Administrative Agent's Account for the relevant Currency in same day funds, such Lender's ratable portion of that Revolving Credit Lender’s Pro Rata Share such Borrowing. After the Administrative Agent's receipt of such funds and upon fulfillment of the Borrowingapplicable conditions set forth in Article IV, the Administrative Agent may assume that each Revolving Credit Lender has made or will make such amount funds available to the Borrower; provided, however, that the Administrative Agent in immediately available shall first make a portion of such funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and equal to the extent aggregate principal amount of any Revolving Letter of Credit Loans as to which the Borrower has received timely notice made by the Issuing Bank and by any other Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall outstanding on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal plus interest accrued and unpaid thereon to and as of such date, available to the interest rate applicable at the time Issuing Bank and such other Lenders for repayment of such Letter of Credit Loans.
(b) Anything in paragraph (a) above to the contrary notwithstanding, the Borrower may only select Eurocurrency Rate Advances composing for a Borrowing if the aggregate amount of such BorrowingBorrowing is in integral amounts of 1,000,000 with a minimum amount of $5,000,000 (or the Dollar Equivalent if denominated in an Alternate Currency).
(c) Subject to Sections 2.04(c) and 2.25, each Notice of Borrowing shall be irrevocable and binding on the Borrower. The failure In the case of any Revolving Credit Borrowing by the Borrower which the related Notice of Borrowing specifies is to be comprised of Eurocurrency Rate Advances, the Borrower shall indemnify each relevant Lender against any loss, cost or expense incurred by such Lender as a result of any failure by Borrower to fulfill on or before the date specified in such Notice of Borrowing for such Borrowing the applicable conditions set forth in Article IV, including, without limitation, any loss (excluding loss of anticipated profits), cost or expense incurred by reason of the liquidation or reemployment of deposits or other funds acquired by such Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make fund the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence as part of such transfer to the Defaulting LenderBorrowing when such Advance, Agent shall transfer any such payments to each other non-Defaulting Lender which is as a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account result of such Defaulting Lender the amount of all failure, is not made on such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to funddate.
Appears in 1 contract
Making of Advances. (ia) In the event that Agent shall elect to have the terms of this subsection 2.2(c) apply At least five Business Days ------------------ prior to a requested Borrowing as described Settlement Date on which the Transferor desires the Transferees to make an Advance, the Transferor shall deliver to the Agent a Notice of Funding. Each such Notice of Funding shall include pro forma calculations of the Funding Base in subsection 2.2(b)respect of the relevant Settlement Date and shall include a list of Leases (each, then promptly after a "Lease Schedule") under which the Lease Receivables included in -------------- the Funding Base arise. Following receipt of a request for a Borrowing pursuant Notice of Funding, the Agent will determine whether the Conduit Transferee will make the requested Advance. If the Conduit Transferee declines to subsection 2.2(a)make such Advance, the Agent shall promptly notify the Revolving Credit LendersTransferor and the Transferor may, not later than 3:00 p.m. (Boston, Massachusetts time) on the Business Day immediately preceding the Funding Date applicable theretoon which it receives such notice, by facsimile, telephone, if such notice is received at or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro Rata Share of the requested Borrowing available prior to Agent in immediately available funds, to Agent’s Account, not later than 2:00 1:00 p.m. (Boston, Massachusetts New York time) on such day, or the following Business Day, if such notice is received after 1:00 p.m. (New York time) on such day, either (x) cancel the applicable Notice of Funding Date or (y) request that the Committed Transferees make such Advance, in each case by notice to the Agent. If the Transferor does not so notify the Agent, then the applicable theretoNotice of Funding shall be deemed canceled. After Agent’s receipt On the date of the proceeds of such Advanceseach Advance, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofArticle III, Agent the Conduit Transferee or each Committed Transferee, ----------- as applicable, shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring Agent at its address referred to in Section 2.05, in immediately available funds funds, an amount equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to the provisions of subsection 2.2(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more in the case ------------ of the applicable conditions precedent set forth in Section 3 will not be satisfied on Conduit Transferee, the requested Funding Date for the applicable Borrowing unless amount of such condition has been waivedAdvance, or and (2) in the requested Borrowing would exceed the Excess Availability on case of a Committed Transferee, such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s Committed Transferee's Pro Rata Share of the Borrowingamount of such Advance, in each case, net of the amount, if any, to be remitted to the Transferor on the relevant Settlement Date pursuant to clause (vi) of Section ------- 2.04(b). After receipt by the Agent may assume that each Revolving Credit Lender has made or of such funds, the Agent will make such amount ------- funds available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted Transferor by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to wire transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers account as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) designated by the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fundTransferor.
Appears in 1 contract
Sources: Lease Receivables Transfer Agreement (Steelcase Inc)
Making of Advances. (i) In the event that the Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(f) apply to a requested Borrowing in excess of $5,000,000 as described in subsection 2.2(bSection 2.1(e), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(d), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro Rata Share of the requested Borrowing available to the Agent in immediately available same day funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 12:00 p.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After the Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, the Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative Borrower’s the Designated Deposit Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(1), the Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Agent such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date. Any Lender that fails to make any Advance that it is required to make hereunder on any Funding Date and that has not cured such failure by making such Advance within one Business Day after written demand upon it by Agent to do so, shall constitute a “Defaulting Lender” for purposes of this Agreement until such Advance is made.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s benefit, and, benefit unless and until all Advances made by other Lenders and the Agent are repaid in full and either (x) the absence of such transfer Commitments are terminated or (y) the Borrowers so request; nor shall a Defaulting Lender be entitled to the Defaulting Lender, sharing of any payments hereunder unless and until all Advances made by other Lenders and the Agent shall transfer any such payments are repaid in full and either (x) the Commitments are terminated or (y) the Borrowers so request. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender Borrower the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Defaulting Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (xA) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (yB) the requisite non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit non-Defaulting Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers Borrower of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(c) apply to a requested Borrowing as described in subsection 2.2(b), then promptly Promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, Lenders not later than 3:00 1:30 p.m. (Boston, Massachusetts California time) (A) on the Business Day immediately preceding the requested Funding Date applicable theretoif the Borrowing is for Base Rate Loans or (B) two (2) Business Days prior to the Funding Date if the Borrowing is for LIBOR Rate Loans, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 2:00 p.m. 8:30 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower no later than 12:00 noon on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(g), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will has not be been satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to no later than 8:30 a.m. on the date of such Borrowingrequested Funding Date, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Revolver Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers Borrower as if such Defaulting Lender had made Advances to BorrowersBorrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Revolver Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Revolver Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers Borrower of their its duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Revolver Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ Group’s or Borrowers’ Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Unified Grocers, Inc.)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSection 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable theretothereto (or two Business Days immediately preceding the Funding Date applicable thereto in the case of the Term Loan), by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such AdvancesAdvances (or the Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to 9:00 a.m. (California time) on the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance (or portion of the Term Loan, as applicable) on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances (or portion of the Term Loan, as applicable) composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance (or portion of the Term Loan, as applicable) on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance (or portion of the Term Loan, as applicable) on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had shall have occurred and is be continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (U Haul International Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection ------- 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSection 2.3(b), then ---- -------------- promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), --- -------------- Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on --------- the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; provided, -------- however, that, subject to the provisions of subsection 2.2(iSection 2.3(i), Agent shall not ------- -------------- request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on --------- the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had has occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers Borrower as if such Defaulting Lender had made Advances to BorrowersBorrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers Borrower of their its duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such -------- ------- ------- assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ Group's or Borrowers’ Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(g) apply to a requested Borrowing in excess of $20,000,000 as described in subsection 2.2(bSection 2.1(f), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(e), Agent shall notify the Revolving Credit Lenders, not later than 3:00 4:00 p.m. (Boston, Massachusetts Boston time) on the Business Day immediately preceding the Funding Date applicable theretoon which such request for Borrowing pursuant to Section 2.1(e) is received by Agent, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro Rata Share of the requested Borrowing available to the Agent in immediately available same day funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 p.m. (Boston, Massachusetts Boston time) on the Funding Date applicable thereto. After the Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, the Agent shall make the proceeds thereof of such Advances available to Administrative Borrower Borrowers on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative Borrower’s the Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(m), the Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Agent such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date. Any Lender that fails to make any Advance that it is required to make hereunder on any Funding Date and that has not cured such failure by making such Advance within one Business Day after written demand upon it by Agent to do so, shall constitute a “Defaulting Lender” for purposes of this Agreement until such Advance is made.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Defaulting Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (xA) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (yB) the requisite non-Defaulting Lenders, Agent, and Administrative Borrower Borrowers shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit non-Defaulting Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Childrens Place Retail Stores Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as -------------- described in subsection 2.2(bSection 2.3(b), then promptly after receipt of a -------------- request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall -------------- notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Accountsuch account of Agent as Agent may designate, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon the satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection -------- ------- ------- 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender ------ shall have the obligation to make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date --------- for the applicable Borrowing (unless such condition has been waivedwaived in accordance herewith), or (2) the requested Borrowing would exceed the Excess Availability of Borrower on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to on the date of the proposed Borrowing but before the funding of such Borrowing, Borrowing that such Revolving Credit Lender will not make available (as and when required hereunder to Agent for the account of Borrowers Borrower) the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers Agent as if such Defaulting Lender had made Advances to Borrowerspermitted herein. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers Borrower for the account of such Defaulting Lender the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zerozero (-0-). This Section section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the requisite non-Defaulting Lenders, Agent, Lenders and Administrative Borrower Agent shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (System Software Associates Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(e) apply to a requested Borrowing as described in subsection 2.2(bSection 2.1(d), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(c), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Accountsuch account of Agent as Agent may designate, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(k), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability of Borrower on such Funding DateDate (after giving effect to reserves established under Section 2.1(b)).
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender Borrower the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zerozero (-0-). This Section section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (y) the non-Defaulting Lenders, Agent, Lenders and Administrative Borrower Agent shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender Borrower of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Employee Solutions Inc)
Making of Advances. (i) In the event that the Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(f) apply to a requested Borrowing in excess of $5,000,000 as described in subsection 2.2(bSection 2.1(e), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(d), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts Eastern time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to the Agent in immediately available same day funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 12:00 p.m. (Boston, Massachusetts Eastern time) on the Funding Date applicable thereto. After the Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, the Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative Borrower’s the Designated Deposit Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(l), the Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date. No Lender shall provide any such notice unless it believes, in good faith, that such events or conditions have occurred.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Agent such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date. Any Lender that fails to make any Advance that it is required to make hereunder on any Funding Date and that has not cured such failure by making such Advance within one Business Day after written demand upon it by Agent to do so, shall constitute a "Defaulting Lender" for purposes of this Agreement until such Advance is made.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender Borrower the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Defaulting Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (xA) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (yB) the requisite non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit non Defaulting Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers Borrower of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Franks Nursery & Crafts Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSection 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto (or, in the case of a request for a Revolver B Advance after the Amendment No. 2 Closing Date, not later than 10:00 a.m. (California time) on the fourth Business Day preceding the Funding Date applicable thereto), by facsimiletelecopy, telephone, telephone or other similar form of transmission, of the requested BorrowingBorrowing (including, in the case of a request for a Revolver B Advance after the Amendment No. 2 Closing Date, that the related Revolver B Drawing Fee shall be payable as provided in this Section 2.3(c) by reduction of the actual amount advanced as provided in Section 2.3(c)(iv)). Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Dateamount that Borrower is entitled to borrow as Revolver A Advances under Section 2.1 (after giving effect to all then outstanding Revolver A Obligations and all sublimits and Agent Reserves applicable hereunder).
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Amendment No. 2 Closing Date or, with respect to any Borrowing after the Amendment No. 2 Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the BorrowingAdvance, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, . and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Revolver Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers Borrower as if such Defaulting Lender had made Advances to BorrowersBorrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Revolver A Commitment and Revolver B Commitment shall each be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, Agent and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Revolver Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers Borrower of their its duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Revolver Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, hereunder and agrees to execute and deliver a completed form of Assignment and Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Revolver Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
(iv) Notwithstanding the foregoing, the amount of proceeds actually required to be advanced by the Lenders with respect to any Revolver B Advance after the Amendment No. 2 Closing Date shall be reduced in the aggregate by the amount of the related Revolver B Drawing Fee, but the amount of such Revolver B Advance for all other purposes shall include the amount of such Revolver B Drawing Fee.
Appears in 1 contract
Sources: Loan and Security Agreement (Abraxas Petroleum Corp)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSECTION 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSECTION 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSECTION 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. 11:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section SECTION 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; providedPROVIDED, howeverHOWEVER, that, subject to the provisions of subsection 2.2(iSECTION 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided furtherPROVIDED FURTHER, howeverHOWEVER, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Ultimate Electronics Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as described in subsection 2.2(b-------------- Section 2.3(b), then promptly after receipt of a request for a -------------- Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, -------------- not later than 3:00 4:00 p.m. (Boston, Massachusetts Georgia time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 1:00 p.m. (Boston, Massachusetts Georgia time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such AdvancesAdvances (or borrowing under the Term Loan or Capital Expenditure Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(i), -------- ------- -------------- Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be --------- satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers Borrower as if such Defaulting Lender had has made Advances to BorrowersBorrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers Borrower of their its duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit -------- ------- ------- Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (DSG International LTD)
Making of Advances. (i) In the event that Administrative Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(e) apply to a requested Borrowing as described in subsection 2.2(bSection 2.1(d), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(c), the Collateral Agent shall notify the Revolving Credit Lenders, not later than 1:00 p.m. (New York time) on the Funding Date applicable thereto (or not later than 3:00 p.m. (Boston, Massachusetts New York time) on the Business Day immediately preceding the Funding Date applicable thereto, in the case of requested Borrowings in an amount of $5,000,000 or greater), by facsimile, telephonetelephone and promptly confirmed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Collateral Agent in immediately available same day funds, to Agent’s Accountsuch account of Collateral Agent as Collateral Agent may designate, not later than 2:00 3:00 p.m. (Boston, Massachusetts New York time) on the Funding Date applicable thereto. After Collateral Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, Collateral Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by Collateral Agent to Administrative Borrower’s the Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(k), Administrative Agent shall instruct Collateral Agent not to request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Administrative Agent shall have actual knowledge received written notice from any Lender that (1A) one or more of the applicable conditions precedent set forth in Section 3 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date. Administrative Agent and Collateral Agent shall not otherwise be required to determine whether the applicable conditions precedent set forth in Sections 3.1 or 3.2 have been satisfied on the Funding Date applicable thereto prior to making, in its sole discretion, any Agent Loan.
(ii) Unless Administrative Agent receives and Collateral Agent receive notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Collateral Agent for the account of Borrowers Borrower the amount of that Revolving Credit such Lender’s 's Pro Rata Share of the Borrowing, Administrative Agent and Collateral Agent may assume that each Revolving Credit Lender has made or will make such amount available to Collateral Agent in immediately available funds on the Funding Date and Collateral Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Collateral Agent in immediately available funds and Collateral Agent in such circumstances has shall have made available to Borrowers Borrower such amount, that Revolving Credit then such Lender shall on the Business Day following such Funding Date make such amount available to Collateral Agent, together with interest at the Defaulting Lender Reference Rate for each day during such periodthe first three (3) days from and after the date the relevant payment is due and thereafter at the interest rate then applicable to Advances. A notice from Administrative Agent or Collateral Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Collateral Agent such payment to Collateral Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing Funding Date for all purposes of this Agreement. If such amount is not made available paid to Collateral Agent on the Business Day following the Funding Date, Administrative Agent will notify Administrative Borrower of such failure to fund and, upon demand by Administrative Agent, Borrowers Borrower shall pay such amount to Agent for Collateral Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate then applicable at the time to the Advances composing such BorrowingAdvances. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any such Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Icf Kaiser International Inc)
Making of Advances. (i) In the event that the Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(f) apply to a requested Borrowing in excess of $250,000 as described in subsection 2.2(bSection 2.1(e), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(d), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to the Agent in immediately available same day funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 12:00 p.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After the Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, the Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative Borrower’s the Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(l), the Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Agent such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date. Any Lender that fails to make any Advance that it is required to make hereunder on any Funding Date and that has not cured such failure by making such Advance within one Business Day after written demand upon it by Agent to do so, shall constitute a "Defaulting Lender" for purposes of this Agreement until such Advance is made.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender Borrower the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Defaulting Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (xA) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (yB) the requisite non-Defaulting Lenders, Agent, and Administrative Borrower Borrowers shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit non-Defaulting Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers Borrower of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Areawide Cellular Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(c) apply to a requested Borrowing as described in subsection 2.2(b), then promptly Promptly after receipt of a request for a Borrowing pursuant to subsection Section 2.2(a), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts New York time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to the Agent in immediately available funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 p.m. (Boston, Massachusetts New York time) on the Funding Date applicable thereto. After the Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, the Agent shall make the proceeds thereof of such Advances available to Administrative the Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative the Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability of the Borrower on such Funding Date.
(ii) Unless the Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to the Agent for the account of Borrowers the Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, the Agent may assume that each Revolving Credit Lender has made or will make such amount available to the Agent in immediately available funds on the Funding Date and Agent the Agent, may (but shall not be so required), in reliance upon such assumption, make available to Borrowers the Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to the Agent in immediately available funds and the Agent in such circumstances has made available to Borrowers the Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to the Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.at
Appears in 1 contract
Sources: Loan and Security Agreement (Corrections Corp of America/Md)
Making of Advances. (i) In the event that the Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(f) apply to a requested Borrowing in excess of $5,000,000 as described in subsection 2.2(bSection 2.1(e), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(d), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 p.m. (BostonRosemont, Massachusetts Illinois time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to the Agent in immediately available same day funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 p.m. (BostonRosemont, Massachusetts Illinois time) on the Funding Date applicable thereto. After the Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, the Agent shall make the proceeds thereof of such Advances available to Administrative Borrower Borrowers on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative Borrower’s the Designated Deposit Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(l), the Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Agent such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower Borrowers of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing; provided, however, that any such payment by Borrowers shall be made without prejudice to any rights Borrowers may have against such Lender. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date. Any Lender that fails to make any Advance that it is required to make hereunder on any Funding Date and that has not cured such failure by making such Advance within one Business Day after written demand upon it by Agent to do so, shall constitute a "Defaulting Lender" for purposes of this Agreement until such Advance is made.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Defaulting Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (xA) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (yB) the requisite non-Defaulting Lenders, Agent, and Administrative Borrower Borrowers shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit non-Defaulting Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (ia) In Each Advance (other than a Letter of Credit Request which shall be submitted in accordance with the event that provisions of Section 2.13 hereof) shall be made on notice given by the Borrower to the Agent shall elect to have the terms (a "Notice of this subsection 2.2(cBorrowing") apply to a requested Borrowing as described in subsection 2.2(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 p.m. (Boston, Massachusetts x) 10:00 a.m. (Boston time) on the same Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephone, or other similar form of transmission, of the proposed Borrowing in the case of a Prime Rate Loan, and (y) 12:00 noon (Boston time) two (2) Business Days prior to the date of the proposed Borrowing in the case of a LIBOR Rate Loan, in either case which Notice of Borrowing shall specify the requested Borrowing. Each Revolving Credit Lender shall make the (i) date of such Advance, (ii) type of Advance, (iii) amount of such Revolving Credit Lender’s Pro Rata Share Advance (which must be a minimum of $100,000.00), and (iv) in the requested Borrowing available to Agent case of a LIBOR Rate Loan, the Interest Period for such Advance, substantially in immediately available funds, to Agent’s Account, not later than 2:00 p.m. (Boston, Massachusetts time) on the Funding Date applicable thereto. After Agent’s receipt form of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated AccountExhibit B hereto; provided, however, thatthat if such Advance is a Permitted Acquisition Advance, subject to such Notice of Borrowing shall be given by the provisions Borrower contemporaneously with a Certificate of subsection 2.2(i), Permitted Acquisition substantially in the form of Exhibit C hereto. The Agent shall not request give the Lenders notice of each Notice of Borrowing in accordance with the Agent's customary practice. Each such Notice of Borrowing may be by telephone or telecopy, in each case confirmed immediately in writing by the Borrower in substantially the form of Exhibit B hereto. The Borrower agrees to indemnify and hold the Lenders harmless for any Revolving Credit Lender to makeaction, and no Revolving Credit Lender shall have including the obligation to make, making of any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedAdvances hereunder, or (2) loss or expense, taken or incurred by the requested Borrowing would exceed Agent and the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent Lenders in immediately available funds on the Funding Date and Agent may (but shall not be so required), in good faith reliance upon such assumption, make available to Borrowers on such date a corresponding amounttelephone request. If and to At the extent any Revolving Credit Lender shall not have time of the initial request for an Advance made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender GroupSection 2.2(a), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) provided the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.a
Appears in 1 contract
Sources: Credit Agreement (Bright Horizons Family Solutions Inc)
Making of Advances. (i) In the event that the Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(g) apply to a requested Borrowing in excess of $8,000,000 as described in subsection 2.2(bSection 2.1(f), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(e), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 2:00 p.m. (Boston, Massachusetts Boston time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to the Agent in immediately available same day funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 p.m. (Boston, Massachusetts Boston time) on the Funding Date applicable thereto. After the Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, the Agent shall make the proceeds thereof of such Advances available to Administrative Borrower Borrowers on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative Borrower’s the Designated Deposit Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(m), the Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Agent such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date. Any Lender that fails to make any Advance that it is required to make hereunder on any Funding Date and that has not cured such failure by making such Advance within one Business Day after written demand upon it by Agent to do so, shall constitute a "Defaulting Lender" for purposes of this Agreement until such Advance is made.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Defaulting Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (xA) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (yB) the requisite non-Defaulting Lenders, Agent, and Administrative Borrower Borrowers shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit non-Defaulting Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Childrens Place Retail Stores Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSection 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such AdvancesAdvances (or the Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance (or its portion of the Term Loans) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers Borrower as if such Defaulting Lender had made Advances to BorrowersBorrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers Borrower of their its duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ Borrower's rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Northland Cranberries Inc /Wi/)
Making of Advances. (i) In the event that the Administrative Agent shall elect to have the terms of this subsection 2.2(cSECTION 2.1(f) apply to a requested Borrowing in excess of $5,000,000 as described in subsection 2.2(bSECTION 2.1(e), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSECTION 2.1(d), the Administrative Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to the Administrative Agent in immediately available same day funds, to Agent’s Accountsuch account of the Administrative Agent as the Administrative Agent may designate, not later than 2:00 12:00 p.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After the Administrative Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSECTIONS 3.1 and 3.2, the Administrative Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Administrative Agent to Administrative Borrower’s the Designated Deposit Account; providedPROVIDED, howeverHOWEVER, that, subject to the provisions of subsection 2.2(iSECTION 2.1(l), the Administrative Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Administrative Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 SECTIONS 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Administrative Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Administrative Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Administrative Agent may assume that each Revolving Credit Lender has made or will make such amount available to Administrative Agent in immediately available funds on the Funding Date and Administrative Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Administrative Agent in immediately available funds and Administrative Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Administrative Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Administrative Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Administrative Agent such payment to Administrative Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available paid to Administrative Agent on the Business Day following the Funding Date, Administrative Agent will notify Administrative Borrower of such failure to fund and, upon demand by Administrative Agent, Borrowers Borrower shall pay such amount to Administrative Agent for Administrative Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Funing Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date. Any Lender that fails to make any Advance that it is required to make hereunder on any Funding Date and that has not cured such failure by making such Advance within one Business Day after written demand upon it by Administrative Agent to do so, shall constitute a "Defaulting Lender" for purposes of this Agreement until such Advance is made.
(iii) Administrative Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Administrative Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed or retained by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Administrative Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender Borrower the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Defaulting Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (xA) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (yB) the requisite non-Defaulting Lenders, Administrative Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit non-Defaulting Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers Borrower of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSection 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, Advances upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower Borrowers on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s (aa) the U.S. Designated AccountAccount if the request for Advance has designated Pioneer Americas as the user of the proceeds and (bb) to the Canadian Designated Account if the request for Advance has designated PCI Chemicals as the user of the proceeds of the Advance; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower Borrowers of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower Borrowers and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower Borrowers shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower Borrowers at its their option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Pioneer Companies Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSECTION 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSECTION 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSECTION 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such AdvancesAdvances (or the Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section SECTION 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; providedPROVIDED, howeverHOWEVER, that, subject to the provisions of subsection 2.2(iSECTION 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that the Agent shall elect to have the terms of this subsection 2.2(cSECTION 2.1(f) apply to a requested Borrowing in excess of $8,000,000 as described in subsection 2.2(bSECTION 2.1(e), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSECTION 2.1(d), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to the Agent in immediately available same day funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 p.m. 11:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After the Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSECTIONS 3.1 and 3.2, the Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative Borrower’s the Designated Deposit Account; providedPROVIDED, howeverHOWEVER, that, subject to the provisions of subsection 2.2(iSECTION 2.1(l), the Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 SECTIONS 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Agent such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date. Any Lender that fails to make any Advance that it is required to make hereunder on any Funding Date and that has not cured such failure by making such Advance within one Business Day after written demand upon it by Agent to do so, shall constitute a "Defaulting Lender" for purposes of this Agreement until such Advance is made.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender Borrower the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Defaulting Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (xA) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (yB) the requisite non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit non-Defaulting Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers Borrower of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Childrens Place Retail Stores Inc)
Making of Advances. (i) In the event that the Agent shall elect (or pursuant to Section 2.1(e) shall be compelled) to have the terms of this subsection 2.2(cSection 2.1(f) apply to a requested Borrowing as described in subsection 2.2(bSection 2.1(e), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(d), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro 's Pro-Rata Share of the requested Borrowing available to the Agent in immediately available same day funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After the Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, the Agent shall make the proceeds thereof of such Advances available to Administrative Borrower not later than 11:00 a.m. (California time) on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative Borrower’s the Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(l), the Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s Pro 's Pro-Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Agent such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Any Lender that fails to make any Advance that it is required to make hereunder on any Funding Date and that has not cured such failure by making such Advance within one Business Day after written demand upon it by Agent to do so, shall not relieve any other Revolving Credit Lender constitute a "Defaulting Lender" for purposes of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender this Agreement and shall be responsible for the failure of any other Revolving Credit Lender to make the Advance continue to be made by a Defaulting Lender until such other Revolving Credit Lender on any Funding DateAdvance is made.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same Agent to be re-advanced applied first to Borrowers as if any amounts owing to Agent by such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, (including interest thereon as provided in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received this Agreement) and retained by it for the account of such Defaulting Lenderthereafter as provided under Sections 2.1(i)(iii) or 2.5(b). Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments (other than matters described in Section 16.1, for which the consent of all Lenders including such Defaulting Lender must still be obtained) and determining Pro-Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Defaulting Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (xA) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (yB) the requisite non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit non-Defaulting Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender Borrower of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Texas New Mexico & Oklahoma Coaches Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(c) apply to a requested Borrowing as described in subsection 2.2(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 p.m. (Boston, Massachusetts time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. (Boston, Massachusetts time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Ultimate Electronics Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(c) apply to a requested Borrowing as described in subsection 2.2(b), then promptly Promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, Lenders not later than 3:00 1:30 p.m. (Boston, Massachusetts California time) (A) on the Business Day immediately preceding the requested Funding Date applicable theretoif the Borrowing is for Base Rate Loans or (B) two (2) Business Days prior to the Funding Date if the Borrowing is for LIBOR Rate Loans, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 2:00 p.m. 8:30 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower no later than 12:00 noon on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(g), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will has not be been satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to no later than 8:30 a.m. on the date of such Borrowingrequested Funding Date, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Revolver Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers Borrower as if such Defaulting Lender had made Advances to BorrowersBorrower. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers Borrower for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.Defaulting
Appears in 1 contract
Sources: Loan and Security Agreement (Unified Grocers, Inc.)
Making of Advances. 10.1 If any Bank or the Overdraft Provider has been requested to make any Advance in accordance with the provisions hereof, and if on the proposed Utilisation Date relating to such an Advance: (i) In no Event of Default or Potential Event of Default has occurred which is continuing; and (ii) the event that Agent shall elect to have the terms of this subsection 2.2(c) apply to a requested Borrowing as described in subsection 2.2(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 p.m. (Boston, Massachusetts time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 2:00 p.m. (Boston, Massachusetts time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent representations and warranties set forth out in Section 3 hereofof the Nu-Kote Guarantees are true in all material respects on and as of such Utilisation Date to the same extent as though made on and as of such Utilisation Date, except to the extent that such representations and warranties specifically relate to an earlier date, in which case, such representations and warranties shall have been true and correct in all material respects as of such earlier date; then, on such Utilisation Date, such Bank or the Overdraft Provider (as the case may be) shall, save as otherwise provided herein, make such Advance (through its Facility Office in the case of such Bank and if Barclays Bank PLC is the Overdraft Provider, through Barclays Overdraft Agent shall make in the proceeds thereof available case of Short-Term Advances) to Administrative the relevant Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to in accordance with the provisions of subsection 2.2(i), Agent Clause 22. Advances made hereunder shall not request any Revolving Credit Lender to makebe represented by notes or other instruments evidencing indebtedness.
10.2 If, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied before 9.00 a.m. on the requested Funding Utilisation Date for of an Advance to be denominiated in an Optional Currency, the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on that:
(i) it is impracticable for the affected Lender to fund its participation in such Advance for its Term in that Optional Currency in the ordinary course of business in the London interbank market; or prior (ii) the use of the proposed Optional Currency might contravene any law or regulation relevant to the Closing Date or, with respect to any Borrowing after affected Lender; then the Closing Date, at least one (1) Business Day prior to Agent shall promptly notify the date of such Borrowing, relevant Borrower and that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but Advance shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to made.
10.3 The Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure relevant Party of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender applicable Agent's Spot Rate of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding DateExchange or Original Swiss Franc Amount as soon as practicable after it is ascertained.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Revolving Credit Facility Agreement (Nu Kote Holding Inc /De/)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSECTION 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSECTION 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSECTION 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s 's receipt of the proceeds of such AdvancesAdvances (or the Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section SECTION 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; providedPROVIDED, howeverHOWEVER, that, subject to the provisions of subsection 2.2(iSECTION 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section SECTION 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) 1 Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided furtherPROVIDED FURTHER, howeverHOWEVER, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ ' or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Sources: Loan and Security Agreement (Peregrine Systems Inc)
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(c) apply to a requested Borrowing as described in subsection 2.2(b), then promptly Promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 2:00 p.m. (Boston, Massachusetts Chicago time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit At Agent's sole option, either (A) each Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s 's Account, not later than 2:00 3:00 p.m. (Boston, Massachusetts Chicago time) on the Funding Date applicable theretothereto or (B) Agent shall advance sufficient funds in respect of such Borrowing and settle with the Lenders pursuant to Section 2.3(d). After Agent’s 's receipt of the proceeds of such AdvancesAdvances to the extent applicable, and upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s 's Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(g), Agent shall not make or request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Administrative Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Administrative Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Administrative Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s 's Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s 's Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ Group's or Borrowers’ ' rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that the Agent shall elect to have the terms of this subsection 2.2(cSection 2.1(f) apply to a requested Borrowing under the Standard Line in excess of $5,000,000 as described in subsection 2.2(bSection 2.1(e), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.1(d), the Agent shall notify the Revolving Credit Lenders, not later than 3:00 p.m. (Boston, Massachusetts Eastern time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimile, telephonetelephone and promptly followed by telecopy, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s 's Pro Rata Share of the requested Borrowing available to the Agent in immediately available same day funds, to Agent’s Accountsuch account of the Agent as the Agent may designate, not later than 2:00 1:00 p.m. (Boston, Massachusetts Eastern time) on the Funding Date applicable thereto. After the Agent’s 's receipt of the proceeds of such Advances, upon satisfaction of the applicable conditions precedent set forth in Section 3 hereofSections 3.1 and 3.2, the Agent shall make the proceeds thereof of such Advances available to Administrative Borrower on the applicable Funding Date by transferring immediately available same day funds equal to the proceeds of such proceeds Advances received by the Agent to Administrative Borrower’s the Designated Deposit Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.1(l), the Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance if the Agent shall have received written notice from any Lender, or otherwise has actual knowledge knowledge, that (1A) one or more of the applicable conditions precedent set forth in Section 3 Sections 3.1 or 3.2 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waivedBorrowing, or (2B) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers Borrower the amount of that Revolving Credit Lender’s 's Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers Borrower on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers Borrower such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Lenders Rate for each day during such period. A notice from Agent submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, paid to Agent such payment to Agent shall constitute such Revolving Credit Lender’s 's Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available paid to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers Borrower shall pay such amount to Agent for Agent’s 's account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date. Any Lender that fails to make any Advance that it is required to make hereunder on any Funding Date and that has not cured such failure by making such Advance within one Business Day after written demand upon it by Agent to do so, shall constitute a "Defaulting Lender" for purposes of this Agreement until such Advance is made.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers Borrower to Agent for the Defaulting Lender’s 's benefit, and, in the absence of such transfer ; nor shall a Defaulting Lender be entitled to the Defaulting Lender, Agent shall transfer sharing of any such payments hereunder. Amounts payable to each other non-a Defaulting Lender which is a Revolving Credit Lender ratably in accordance with their Revolving Credit Commitments (but only shall instead be paid to the extent that such Defaulting Lender’s Advance was funded or retained by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to BorrowersAgent. Subject to the foregoing, Agent may hold and, in its Permitted Discretiondiscretion, re-lend to Borrowers for the account of such Defaulting Lender Borrower the amount of all such payments received and or retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan DocumentsDocuments and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Credit "Lender” " and such Defaulting Lender’s Revolving Credit 's Commitment shall be deemed to be zero. This Section section shall remain effective with respect to such Defaulting Lender until (xA) the Obligations under this Agreement shall have been declared or shall have become immediately due and payable, payable or (yB) the requisite non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s 's default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent all amounts owing by Defaulting Lender in respect thereof. The operation of this Section section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit non Defaulting Lender, to or relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers Borrower of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund.
Appears in 1 contract
Making of Advances. (i) In the event that Agent shall elect to have the terms of this subsection 2.2(cSection 2.3(c) apply to a requested Borrowing as described in subsection 2.2(bSection 2.3(b), then promptly after receipt of a request for a Borrowing pursuant to subsection 2.2(aSection 2.3(a), Agent shall notify the Revolving Credit Lenders, not later than 3:00 1:00 p.m. (Boston, Massachusetts California time) on the Business Day immediately preceding the Funding Date applicable thereto, by facsimiletelecopy, telephone, or other similar form of transmission, of the requested Borrowing. Each Revolving Credit Lender shall make the amount of such Revolving Credit Lender’s Pro Rata Share of the requested Borrowing available to Agent in immediately available funds, to Agent’s Account, not later than 2:00 p.m. 10:00 a.m. (Boston, Massachusetts California time) on the Funding Date applicable thereto. After Agent’s receipt of the proceeds of such AdvancesAdvances (or the Term Loan, as applicable), upon satisfaction of the applicable conditions precedent set forth in Section 3 hereof, Agent shall make the proceeds thereof available to Administrative Borrower on the applicable Funding Date by transferring immediately available funds equal to such proceeds received by Agent to Administrative Borrower’s Designated Account; provided, however, that, subject to the provisions of subsection 2.2(iSection 2.3(i), Agent shall not request any Revolving Credit Lender to make, and no Revolving Credit Lender shall have the obligation to make, any Advance (or its portion of the Term Loan) if Agent shall have actual knowledge that (1) one or more of the applicable conditions precedent set forth in Section 3 will not be satisfied on the requested Funding Date for the applicable Borrowing unless such condition has been waived, or (2) the requested Borrowing would exceed the Excess Availability on such Funding Date.
(ii) Unless Agent receives notice from a Revolving Credit Lender on or prior to the Closing Date or, with respect to any Borrowing after the Closing Date, at least one (1) Business Day prior to the date of such Borrowing, that such Revolving Credit Lender will not make available as and when required hereunder to Agent for the account of Borrowers the amount of that Revolving Credit Lender’s Pro Rata Share of the Borrowing, Agent may assume that each Revolving Credit Lender has made or will make such amount available to Agent in immediately available funds on the Funding Date and Agent may (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If and to the extent any Revolving Credit Lender shall not have made its full amount available to Agent in immediately available funds and Agent in such circumstances has made available to Borrowers such amount, that Revolving Credit Lender shall on the Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Revolving Credit Lender with respect to amounts owing under this subsection shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Revolving Credit Lender’s Advance on the date of Borrowing for all purposes of this Agreement. If such amount is not made available to Agent on the Business Day following the Funding Date, Agent will notify Administrative Borrower of such failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent for Agent’s account, together with interest thereon for each day elapsed since the date of such Borrowing, at a rate per annum equal to the interest rate applicable at the time to the Advances composing such Borrowing. The failure of any Revolving Credit Lender to make any Advance on any Funding Date shall not relieve any other Revolving Credit Lender of any obligation hereunder to make an Advance on such Funding Date, but no Revolving Credit Lender shall be responsible for the failure of any other Revolving Credit Lender to make the Advance to be made by such other Revolving Credit Lender on any Funding Date.
(iii) Agent shall not be obligated to transfer to a Defaulting Lender any payments made by Borrowers to Agent for the Defaulting Lender’s benefit, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments to each other non-Defaulting Lender which is a Revolving Credit member of the Lender Group ratably in accordance with their Revolving Credit Commitments (but only to the extent that such Defaulting Lender’s Advance was funded by the other members of the Lender Group) or, if so directed by Administrative Borrower and if no Default or Event of Default had occurred and is continuing (and to the extent such Defaulting Lender’s Advance was not funded by the Lender Group), retain same to be re-advanced to Borrowers as if such Defaulting Lender had made Advances to Borrowers. Subject to the foregoing, Agent may hold and, in its Permitted Discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by it for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Loan Documents, such Defaulting Lender shall be deemed not to be a “Revolving Credit Lender” and such Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section clause (iii) shall remain effective with respect to such Defaulting Lender until (x) the Obligations under this Agreement shall have been declared or shall have become immediately due and payablepayable and the Defaulting Lender shall have paid to Agent and Borrowers all amounts owing by Defaulting Lender, (y) the non-Defaulting Lenders, Agent, and Administrative Borrower shall have waived such Defaulting Lender’s default in writing, or (z) the Defaulting Lender makes its Pro Rata Share of the applicable Advance and pays to Agent and Borrowers all amounts owing by Defaulting Lender in respect thereof. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Revolving Credit Lender, to relieve or excuse the performance by such Defaulting Lender or any other Revolving Credit Lender of its duties and obligations hereunder, or to relieve or excuse the performance by Borrowers of their duties and obligations hereunder to Agent or to the Revolving Credit Lenders other than such Defaulting Lender. Any such failure to fund by any Defaulting Lender shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Administrative Borrower at its option, upon written notice to Agent, to arrange for a substitute Lender to assume the Revolving Credit Commitment of such Defaulting Lender, such substitute Lender to be acceptable to Agent. In connection with the arrangement of such a substitute Lender, 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 Acceptance Agreement in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being repaid its share of the outstanding Obligations (other than Bank Product Obligations) (including an assumption of its Pro Rata Share of the Risk Participation Liability) without any premium or penalty of any kind whatsoever; provided further, however, that any such assumption of the Revolving Credit Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any of the Lender Groups’ or Borrowers’ rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fundfund or otherwise.
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Sources: Loan and Security Agreement (Mercator Software Inc)