Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required to be made by it hereunder (including under Section 2.13, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, on the date when due and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. (b) If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties. (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Five Year Credit Agreement (Genworth Financial Inc), Credit Agreement (Genworth Financial Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00noon, or otherwise) prior to 12:00 noon, New York City central time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Percentage Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00noon, without set-off or counterclaim. Any amounts received after such time on any date maycentral time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) If at any time insufficient funds are received by and available Subject to the Paying Agent definition of “Interest Period,” if any payment to pay fully all amounts of principalbe made by the Borrower shall come due on a day other than a Business Day, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds payment shall be applied (i) first, to pay interest and fees then due hereunder, ratably among made on the parties entitled thereto in accordance with the amounts of interest and fees then due to such partiesnext following Business Day, and (ii) secondsuch extension of time shall be reflected in computing interest or fees, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among as the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiescase may be.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon (1) in respect of each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day first two Business Days from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect, and (2) in respect of each day after the first two Business Days from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds, at the Base Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to (1) for the first two Business Days of any Compensation Period, the Federal Funds Rate from time to time in effect, and (2) for each other day of any Compensation Period, the interest rate applicable to the applicable Borrowing. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights that the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) If The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender shall fail to make any payment Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Credit Agreement (Comstock Resources Inc), Credit Agreement (Comstock Oil & Gas, LP)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from is required to be made by it to the Administrative Agent hereunder, the Borrower is due to or such Lender, as the Paying Agent for the account of the relevant Lenders hereunder that the Borrower case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay (subject to its recoupment rights from and remedies against such defaulting Lender of any breakage costs paid by the Borrower when repaying such amount) such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender to make any Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Credit Agreement (Enbridge Energy Partners Lp), 364 Day Credit Agreement (Enbridge Energy Partners Lp)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the applicable Administrative Agent’s Office in immediately available funds not later than 12:00 noonp.m., New York City time, on the date when due and in immediately available fundsspecified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent (i) after 12:00 p.m., without set-off or counterclaim. Any amounts received after such New York time on any date may, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied in the following order: (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) or 2.15(d)to such Lender, then without interest.
(f) The obligations of the Paying Agent mayLenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan required hereunder shall not relieve any other Lender of its corresponding obligation to do so, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Second Lien Credit Agreement (Erickson Air-Crane Inc), Second Lien Credit Agreement (Erickson Air-Crane Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent’s Office in Dollars and in immediately available funds, without set-off funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period”, if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender within one Business Day, without interest (provided that if such funds are not returned to such Lender within one Business Day, the Administrative Agent shall pay interest thereon from the date one Business Day after the Lender makes such funds available to the Administrative Agent to the date such funds are returned at a rate per annum equal to the Federal Funds Rate).
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Credit Agreement (School Specialty Inc), Credit Agreement (School Specialty Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 a Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) firstFIRST, to pay toward costs and expenses (including Attorney Costs and amounts payable under ARTICLE III) incurred by the Administrative Agent and each Lender, (ii) SECOND, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondTHIRD, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If Unless any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for hereunder, that such Borrower or such Lender, as the account of the relevant Lenders hereunder that the Borrower case may be, will not make such payment, the Paying Administrative Agent may assume that such Borrower or such Lender, as the Borrower case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if such Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to such Borrower to the date such amount is recovered by the Administrative Agent (the "COMPENSATION PERIOD") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower that received such Loan, and such Borrower shall pay (subject to its recoupment rights from and remedies against such defaulting Lender of any breakage costs paid by such Borrower when repaying such amount) such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this ARTICLE II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in ARTICLE IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender to make any Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Credit Agreement (Enbridge Energy Partners Lp), 364 Day Credit Agreement (Enbridge Energy Limited Partnership)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of L/C Borrowings and then, principal and unreimbursed LC Disbursements then due hereunderhereunder or pursuant hereto, ratably among the parties entitled thereto in accordance with the amounts of principal L/C Borrowings and unreimbursed LC Disbursements principal, as the case may be, then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Revolving Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Revolving Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Revolving Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Revolving Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner; provided, however, that the foregoing shall not affect the obligation of any Lender to make, continue and convert Loans in accordance with the terms and provisions hereof.
Appears in 2 contracts
Sources: Credit Agreement (Bj Services Co), Credit Agreement (Bj Services Co)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent's Office in Dollars and in immediately available funds, without set-off funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period", if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent, (ii) second, toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Lenders, ratably among the parties entitled thereto in accordance with the amounts of costs and expenses then due to pay such parties, (iii) third, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiv) secondfourth, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Credit Agreement (Psychiatric Solutions Inc), Credit Agreement (Psychiatric Solutions Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment all payments of principal, interest, fees, reimbursements and all other payments required under this Agreement and under the Loans in immediately available US funds, as and when due, free and clear and without deduction for any and all taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto of any nature whatsoever imposed by any taxing authority, excluding such taxes to the extent imposed on or measured by Lender’s net income, overall receipts or capital by the jurisdiction in which Lender is organized or in which it maintains its applicable lending office. If Borrower shall be required by law to deduct any such amounts from or in respect of any sum payable hereunder to Lender, then the sum payable hereunder shall be increased as may be necessary so that, after making all required deductions, Lender receives an amount equal to the sum it would have received had no such deductions been made. Except to the extent otherwise set forth in this Agreement, all payments of principal of and interest on the Credit Facilities, all other charges and any other obligations of Borrower under this Agreement, shall be made by it hereunder (including under Section 2.13to Lender to the Lender’s Concentration Account, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, on the date when due and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇without deduction for any set-off, 10th Floorrecoupment, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, counterclaim or at such other office defense that Borrower now has or may have in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionfuture.
(b) If at any time insufficient funds are Except for payments related to specific Obligations hereunder or as provided in the next sentence, all sums received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds Lender under this Agreement shall be applied (i) firstfirst to all unpaid fees, to pay interest costs and fees then due hereunderexpenses, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay all accrued and unpaid interest on the Term Loans, third, to all accrued and unpaid interest on the Revolving Credit Loans, fourth, to reduce the principal amount of the Term Loans in inverse order of their maturities and unreimbursed LC Disbursements then due fifth, to reduce the scheduled principal payments of the Revolving Credit Loans. Following any Default hereunder, ratably among or following the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion maturity of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion Obligations, all sums received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute shall be applied to the relevant Lenders the amount due. In Obligations in such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any order as Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, elect in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paiddiscretion.
Appears in 2 contracts
Sources: Loan and Security Agreement (Nimblegen Systems Inc), Loan and Security Agreement (Nimblegen Systems Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made in Dollars without condition or deduction for any counterclaim, defense, recoupment or set-off. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (including under Section 2.13, 2.14, 2.17, or otherwiseother applicable share as provided herein) prior of such payment in like funds as received by wire transfer to 12:00 noonsuch Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m., New York City time, on the date when due and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest the Administrative Agent’s fees and fees reimbursable expenses (including Attorney Costs and amounts payable under Article III) then due hereunder, ratably among and payable pursuant to any of the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and Loan Documents; (ii) second, to pay all reimbursable expenses of the Lenders then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders based on their respective pro rata shares of such fees and expenses; (iii) third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and (iv) fourth, to the payment of principal and unreimbursed LC Disbursements of the Loans then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in Dollars in immediately available funds, at the greater of the Federal Funds Effective RateRate as in effect from time to time or a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, until the second Business Day after such demand and thereafter at the greater of the Base Rate or a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Dollars in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at the greater of the Federal Funds Rate as in effect from time to time or a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, until the second Business Day after such demand and thereafter at the greater of the Base Rate or a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount within two Business Days after the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions set forth in Section 4.02 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation.
(g) Subject to Section 2.05(b) or 2.15(d)3.08, then the Paying Agent may, in its discretion (notwithstanding nothing herein shall be deemed to obligate any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidobtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: 364 Day Bridge Term Loan Agreement (Harris Corp /De/), Term Loan Agreement (Harris Corp /De/)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees Obligations then due hereunder, such funds shall be applied (i) first, toward Obligations in respect of any cost or expense reimbursements (including Attorney Costs and amounts payable under Article III), fees and indemnities then due hereunder to pay the Administrative Agent, (ii) second, toward Obligations in respect of any cost or expense reimbursements (including Attorney Costs and amounts payable under Article III), fees and indemnities then due hereunder to the Lenders, ratably among the parties entitled thereto in accordance with such amounts then due to such parties, (iii) third, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiv) secondfourth, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties and unreimbursed LC Disbursements (v) fifth, to all other Obligations then due hereunder, ratably among the parties entitled thereto in accordance with such amounts then due to such parties.
(ci) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Fixed Period Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Committed Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If any Lender shallfailed to make such payment, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of shall forthwith on demand pay to the aggregate Administrative Agent the amount of its Loans and participations thereof in LC Disbursements and accrued immediately available funds, together with interest thereon than for the proportion received period from the date such amount was made available by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders Administrative Agent to the extent necessary so that Borrower to the benefit of all date such payments shall be shared amount is recovered by the Lenders ratably Administrative Agent (the “Compensation Period”) at a rate per annum equal to the greater of (A) the Federal Funds Rate from time to time in effect and (B) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the aggregate Administrative Agent in connection with the foregoing. If such Lender pays such amount of principal of and accrued interest on their respective Loans and participations to the Administrative Agent, then such amount shall constitute such Lender’s Committed Loan included in LC Disbursements; provided that (i) if any the applicable Borrowing. If such participations are purchased and all or any portion of Lender does not pay such amount forthwith upon the payment giving rise thereto is recoveredAdministrative Agent’s demand therefor, such participations shall be rescinded the Administrative Agent may make a demand therefor upon the Borrower, and the purchase price restored Borrower shall pay (subject to the extent its recoupment rights from and remedies against such defaulting Lender of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made breakage costs paid by the Borrower pursuant when repaying such amount) such amount to and in accordance the Administrative Agent, together with interest thereon for the express terms Compensation Period at a rate per annum equal to the rate of this Agreement interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any payment obtained by a rights which the Administrative Agent or the Borrower may have against any Lender as consideration a result of any default by such Lender hereunder. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the assignment of same or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participantan overlapping period, other than the Administrative Agent shall promptly remit to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationinterest paid by the Borrower for such period.
(dii) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by date on which any payment from the Borrower is due to the Paying Administrative Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Administrative Agent forthwith on demand the amount so distributed to such Lender Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Administrative Agent, at the greater of the Federal Funds Effective RateRate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall fail return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans and to make payments pursuant to Section 10.05(b) are several and not joint. The failure of any Lender to make any Committed Loan or to make any payment under Section 10.05(b) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent responsible for the account failure of such any other Lender to satisfy such Lender’s obligations so make its Committed Loan or to make its payment under such Sections until all such unsatisfied obligations are fully paidSection 10.05(b).
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Credit Agreement (Enbridge Energy Partners Lp), Credit Agreement (Enbridge Energy Partners Lp)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required to be made by it hereunder (including under Section 2.13, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, on the date when due and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(b) If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by on which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Credit Agreement (Genworth Financial Inc), Credit Agreement (Genworth Financial Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 2:00 p.m., or otherwise) prior to 12:00 noonDallas, New York City Texas time, on the date when due specified herein. The Administrative Agent will promptly, and in immediately available fundsany event within the same business day, without set-off distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may2:00 p.m., in the discretion of the Paying AgentDallas, Texas time, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue. The Borrower authorizes the Administrative Agent to charge the account of calculating interest thereon. All such payments shall be made to the Paying Agent at its offices at ▇▇▇ ▇Borrower maintained with ▇▇▇▇▇ ▇▇▇▇▇▇Fargo (as of the Closing Date, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States account is number #4761053503) for each payment of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interestprincipal, interest thereon shall be payable for the period of such extensionand fees as it becomes due hereunder.
(b) If Subject to the definition of “Interest Period,” if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c) If, at any time after an Event of Default (but prior to (A) the exercise of remedies provided for in Section 8.02 or (B) the Term Loans becoming automatically due and payable), insufficient funds under this Agreement are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender in respect of this Agreement, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Term Loan included in the Term Loan Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefore, the Administrative Agent may make a demand therefore upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the Term Loan. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Term Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe Term Loan Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) or 2.15(d)to such Lender, then without interest.
(f) The obligations of the Paying Agent mayLenders hereunder to make its Term Loan are several and not joint. The failure of any Lender to make its Term Loan on the date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Term Loan.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for its Term Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for its Term Loan in any particular place or manner.
Appears in 2 contracts
Sources: Credit Agreement (Cash America International Inc), Credit Agreement (Cash America International Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrowers shall be made without condition or deduction for any counterclaim, defense (other than payment in full), recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent’s Office in Dollars and in immediately available funds, without set-off funds not later than 12:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such ▇▇▇▇▇▇’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, 12:00 p.m. shall in the discretion of the Paying Agent, each case be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrowers shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from Borrowers or any Lender has notified the Borrower Administrative Agent, prior to the time by which any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower Borrowers or such ▇▇▇▇▇▇, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower Borrowers or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) with respect to any payment that the Administrative Agent makes for the account of the Lenders or any L/C Issuer hereunder as to which the amount due. In Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such event, if payment referred to as the Borrower has “Rescindable Amount”): (1) the Borrowers have not in fact made such payment, ; (2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrowers (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise erroneously made such payment; then each of the relevant Lenders or the L/C Issuers, as the case may be, severally agrees to repay to the Paying Administrative Agent forthwith on demand the amount Rescindable Amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Administrative Agent, at the greater of the Federal Funds Effective RateRate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrowers to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such ▇▇▇▇▇▇ does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrowers, and the Borrowers shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrowers with respect to any amount owing under this Section 2.12(d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such ▇▇▇▇▇▇ as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrowers by the Paying Administrative Agent because the conditions to the applicable Borrowing set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy so make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(h) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, if at any time following the occurrence and during the continuation of an Event of Default, but prior to the exercise of remedies as provided for in Section 9.02, payment is made by the Borrowers and is applied to payment of principal or interest on the Loans, such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidpayment shall be applied ratably to the unpaid principal or interest, as the case may be, of the Loans (and breakage, termination or other payments and any interest accrued thereon).
Appears in 2 contracts
Sources: Amendment and Restatement Agreement (Ardent Health Partners, LLC), Abl Credit Agreement (Ardent Health Partners, LLC)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17at the Administrative Agent's Office in Dollars and in immediately available funds not later than 11:00 a.m., or otherwise) prior to 12:00 noonDallas, New York City Texas time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 11:00 a.m., without set-off or counterclaim. Any amounts received after such time on any date mayDallas, in the discretion of the Paying AgentTexas time, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "INTEREST PERIOD," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If no Default or Event of Default exists and if no order of application is otherwise specified in the Loan Documents, payments and prepayments of the Obligations shall be applied first to fees, second to accrued interest then due and payable on the Outstanding Amount of Loans and L/C Obligations, and then to the remaining Obligations in the order and manner as Borrower may direct.
(d) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts the Obligations, or if a Default or Event of principalDefault exists, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds any payment or prepayment shall be applied in the following order: (i) firstto the payment of enforcement expenses incurred by the Administrative Agent, including Attorney Costs; (ii) to pay interest the ratable payment of all other fees, expenses, and fees then due hereunder, ratably among indemnities for which the parties entitled thereto Administrative Agent or Lenders have not been paid or reimbursed in accordance with the amounts Loan Documents (as used in this SECTION 2.11(d)(ii), a "RATABLE PAYMENT" for any Lender or the Administrative Agent shall be, on any date of interest determination, that proportion which the portion of the total fees, expenses, and fees then due indemnities owed to such partiesLender or the Administrative Agent bears to the total aggregate fees and indemnities owed to all Lenders and the Administrative Agent on such date of determination); (iii) to the ratable payment of accrued and unpaid interest on the Outstanding Amount of Loans and the Outstanding Amount of Obligations under Lender Hedging Agreements (as used in this SECTION 2.11(d)(iii), "RATABLE PAYMENT" means, for any Lender (or Lender Affiliate, in the case of Lender Hedging Agreements), on any date of determination, that proportion which the accrued and unpaid interest on the Outstanding Amount of Loans and the Outstanding Amount of Obligations under Lender Hedging Agreements owed to such Lender (or Lender Affiliate, in the case of Lender Hedging Agreements) bears to the total accrued and unpaid interest on the Outstanding Amount of Loans and the Outstanding Amount of Obligations under Lender Hedging Agreements owed to all Lenders (and Affiliates, in the case of Lender Hedging Agreements)); (iv) to the ratable payment of the Outstanding Amount of Loans (as used in this SECTION 2.11(d)(iv), "RATABLE PAYMENT" means for any Lender, on any date of determination, that proportion which the Outstanding Amount of Loans owed to such Lender bears to the Outstanding Amount of Loans owed to all Lenders); (v) to Cash Collateralize the Letters of Credit, and (iivi) secondto the payment of the remaining Obligations, to pay principal if any, in the order and unreimbursed LC Disbursements then due hereunder, ratably among manner the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiesRequired Lenders deem appropriate.
(ce) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "COMPENSATION PERIOD") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (e) shall be conclusive, absent manifest error.
(ef) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this ARTICLE II, and the conditions to Section 2.05(bthe applicable Borrowing set forth in ARTICLE IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) or 2.15(d)to such Lender, then without interest.
(g) The obligations of the Paying Agent mayLenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(h) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Credit Agreement (Markwest Energy Partners L P), Credit Agreement (Markwest Energy Partners L P)
Payments Generally. (a) Unless All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or set-off. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent's Office in Dollars and in immediately available funds not later than 2:00 p.m., New York time, on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 2:00 p.m., New York time, shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. Without limiting the generality of the foregoing, the Borrower shall make each payment required in respect of a Negotiated Bid Loan not later than 3:00 p.m. (local time at the place of payment) on the day when due to or for the account of the Lender making such Loan at such location as may be agreed by the Borrower and such Lender in connection with the making of such Negotiated Bid Loan, upon such terms as such Lender and the Borrower shall agree in connection with the making thereof.
(b) Subject to the definition of "Interest Period," if any payment to be made by it hereunder (including under Section 2.13, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, on the date when due and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments Borrower shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Committed Loan or Competitive Bid Loan, as the case may be, included in the applicable Borrowing. If such Lender does not pay such amount within two Business Days after the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans and to fund participations in Letters of Credit and Swingline Loans are several and not joint. The failure of any Lender to make any Committed Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan or purchase its participation.
(g) Subject to Section 2.05(b) or 2.15(d)3.09, then the Paying Agent may, in its discretion (notwithstanding nothing herein shall be deemed to obligate any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidobtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Harris Corp /De/), Revolving Credit Agreement (Harris Corp /De/)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day (unless such Business Day falls in another calendar month in which case such payment shall be made on the next preceding Business Day), and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c) If, at any time prior to the Obligations being accelerated or otherwise becoming due and payable in full, insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, ----- toward repayment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and then due to such parties, (ii) second, toward repayment of interest and fees then due ------ hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iii) third, toward ----- costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender. If. at any time after the Obligations are accelerated or otherwise become due and payable in full, funds are received by and available to the Administrative Agent to pay the Obligations, such funds shall be applied (i) first, toward costs and expenses ----- (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest ------ and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the ----- parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this Section 2.11(d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) or 2.15(d)to such Lender, then without interest.
(f) The obligations of the Paying Agent mayLenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Credit Agreement (FMC Technologies Inc), Credit Agreement (FMC Technologies Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day (unless such Business Day falls in another calendar month in which case such payment shall be made on the next preceding Business Day), and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c) If, at any time prior to the Obligations being accelerated or otherwise becoming due and payable in full, insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward repayment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to pay such parties, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iii) third, toward costs and expenses (including ----- Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender. If. at any time after the Obligations are accelerated or otherwise become due and payable in full, funds are received by and available to the Administrative Agent to pay the Obligations, such funds shall be applied (i) first, toward costs and expenses (including Attorney Costs ----- and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due ------ hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to pay such parties, and (iii) third, toward ----- repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this Section 2.11(d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender to make any Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Credit Agreement (FMC Technologies Inc), Credit Agreement (FMC Technologies Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noonat the Administrative Agent's Office in Dollars and in immediately available funds not later than 2:00 p.m., New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 2:00 p.m., without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account portion of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.assumed payment that
Appears in 2 contracts
Sources: Credit Agreement (Harris Corp /De/), Credit Agreement (Harris Corp /De/)
Payments Generally. (ai) Unless otherwise specified herein, the Borrower shall be obligated to make each payment required to be made by it hereunder (including under Section 2.13, 2.14, 2.17, or otherwise) prior to 12:00 noon3:00 p.m., New York City time, on the date when due and in immediately available funds, without set-set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying AgentIssuing Lender, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereonthereon and for determining whether an Event of Default has occurred. All such payments shall be made by wire transfer to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly Issuing Lender to the Persons entitled theretoaccounts specified by the Issuing Lender in a written notice to the Borrower at least five (5) Business Days prior to payment. The Paying Agent Issuing Lender shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a calendar day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(bii) If at any time insufficient funds are received by and available to the Paying Agent Issuing Lender to pay fully all amounts of principal, unreimbursed LC LOC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts Priority of interest and fees then due Payments and, solely with respect to such partiesthe unreimbursed LOC Reimbursement Obligations, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiesPayment Restrictions.
(ciii) If any Lender shallExcept as otherwise provided herein, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or all interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments payable hereunder shall be shared by computed on the Lenders ratably in accordance with the aggregate amount basis of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment based on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
, a year of three hundred sixty (e360) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then days and the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account actual number of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.days elapsed,
Appears in 2 contracts
Sources: Reimbursement Agreement (Protective Life Insurance Co), Reimbursement Agreement (Protective Life Corp)
Payments Generally. (ai) Unless otherwise specified hereinExcept as provided below, all payments, including prepayments, of principal and interest on the Loans, of the Commitment Fee, the Borrower shall make each payment required Letter of Credit Fees and of all other amounts to be paid by the Borrower under the Loan Documents (the Commitment Fee, the Letter of Credit Fees, together with all of such other fees, being sometimes hereinafter collectively referred to as the "Fees") shall be made by it hereunder (including under Section 2.13to the Administrative Agent, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, 1:00 p.m. on the date when due such payment is due, for the account of the applicable Credit Parties at the Payment Office, in Dollars and in immediately available funds, without set-off off, offset, recoupment or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. The failure of the Borrower to make any such payment by such time shall not constitute a Default, provided that such payment is made on such due date, but any such payment made after 1:00 p.m. on such due date shall be deemed to have been made on the next Business Day for the purpose of calculating interest on amounts outstanding on the Loans. As between the Borrower and each Credit Party, any payment by the Borrower to the Administrative Agent for the account of such Credit Party shall be deemed to be payment by the Borrower to such Credit Party. Notwithstanding the foregoing, all payments pursuant to Sections 3.4, 3.5, 3.6 and 11.4 shall be paid directly to the Credit Party entitled thereto. If any payment hereunder under the Loan Documents shall be due and payable on a day that which is not a Business Day, the due date for payment thereof (except as otherwise provided with respect to Interest Periods) shall be extended to the next succeeding Business Day, and, Day and (except with respect to payments in respect of the case of any payment accruing interest, Fees) interest thereon shall be payable for at the period of applicable rate specified herein during such extension, provided, however, that if such next Business Day would be after (i) with respect to Tranche A Loans and Letters of Credit, the Tranche A Maturity Date, (ii) with respect to the Tranche B Loans, the Tranche B Maturity Date, (iii) with respect to the Tranche B-1 Loans, the Tranche B-1 Maturity Date, and (iv) with respect to the Tranche C Loans, the Tranche C Maturity Date, such payment shall instead be due on the immediately preceding Business Day.
(bii) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees Fees then due hereunder, such funds shall be applied (iA) first, to pay towards payment of interest and fees Fees then due hereunderunder the Loan Documents, ratably among the parties entitled thereto in accordance with the amounts of interest and fees Fees then due to such parties, and (iiB) second, to pay towards payment of principal and unreimbursed LC Disbursements then due hereunderunder the Loan Documents, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 2 contracts
Sources: Credit Agreement (Arch Wireless Inc), Credit Agreement (Arch Communications Group Inc /De/)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by any Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent's Office in Dollars and in immediately available funds, without set-off funds not later than 12:00 noon on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 12:00 noon shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) If at any time insufficient funds are received payment to be made by and available to the Paying Agent to pay fully all amounts of principalany Borrower shall come due on a day other than a Business Day, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds payment shall be applied (i) first, to pay interest and fees then due hereunder, ratably among made on the parties entitled thereto in accordance with the amounts of interest and fees then due to such partiesnext following Business Day, and (ii) secondsuch extension of time shall be reflected in computing interest or fees, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among as the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiescase may be.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of Unless a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for hereunder, that such Borrower or such Lender, as the account of the relevant Lenders hereunder that the Borrower case may be, will not make such payment, the Paying Administrative Agent may assume that such Borrower or such Lender, as the Borrower case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if a Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the applicable Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the applicable Borrower, and such Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or any Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or any Borrower with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the applicable Borrower by the Administrative Agent because the conditions to the applicable Borrowing set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest, on the succeeding Business Day.
(e) If The obligations of the Lenders hereunder to make Committed Loans are several and not joint. The failure of any Lender shall fail to make any payment Committed Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Committed Loan.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Five Year Credit Agreement (Toyota Motor Credit Corp), 364 Day Credit Agreement (Toyota Motor Credit Corp)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(ci) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Fixed Period Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If any Lender shallfailed to make such payment, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of shall forthwith on demand pay to the aggregate Administrative Agent the amount of its Loans and participations thereof in LC Disbursements and accrued immediately available funds, together with interest thereon than for the proportion received period from the date such amount was made available by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders Administrative Agent to the extent necessary so that Borrower to the benefit of all date such payments shall be shared amount is recovered by the Lenders ratably Administrative Agent (the “Compensation Period”) at a rate per annum equal to the greater of (A) the Federal Funds Rate from time to time in effect and (B) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the aggregate Administrative Agent in connection with the foregoing. If such Lender pays such amount of principal of and accrued interest on their respective Loans and participations to the Administrative Agent, then such amount shall constitute such Lender’s Committed Loan included in LC Disbursements; provided that (i) if any the applicable Borrowing. If such participations are purchased and all or any portion of Lender does not pay such amount forthwith upon the payment giving rise thereto is recoveredAdministrative Agent’s demand therefor, such participations shall be rescinded the Administrative Agent may make a demand therefor upon the Borrower, and the purchase price restored Borrower shall pay (subject to the extent its recoupment rights from and remedies against such defaulting Lender of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made breakage costs paid by the Borrower pursuant when repaying such amount) such amount to and in accordance the Administrative Agent, together with interest thereon for the express terms Compensation Period at a rate per annum equal to the rate of this Agreement interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any payment obtained by a rights which the Administrative Agent or the Borrower may have against any Lender as consideration a result of any default by such Lender hereunder. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the assignment of same or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participantan overlapping period, other than the Administrative Agent shall promptly remit to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationinterest paid by the Borrower for such period.
(dii) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by date on which any payment from the Borrower is due to the Paying Administrative Agent for the account of the relevant Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Paying Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Paying Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Administrative Agent, at the greater of the Federal Funds Effective RateRate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall fail return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.05(b) are several and not joint. The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 10.05(b) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent responsible for the account failure of such any other Lender to satisfy such Lender’s obligations so make its Committed Loan, to purchase its participation or to make its payment under such Sections until all such unsatisfied obligations are fully paidSection 10.05(b).
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 2 contracts
Sources: Credit Agreement (Enbridge Energy Partners Lp), Credit Agreement (Enbridge Energy Partners Lp)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available funds, without set-off or counterclaimlike funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 12:00 noon shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 a Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If Unless any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for hereunder, that such Borrower or such Lender, as the account of the relevant Lenders hereunder that the Borrower case may be, will not make such payment, the Paying Administrative Agent may assume that such Borrower or such Lender, as the Borrower case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if such Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed to it to but excluding the date of payment repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateOvernight Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the applicable Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Overnight Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Committed Loan or Foreign Currency Loan, as the case may be, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon such Borrower, and such Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or any Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error. Upon any Lender failing to make such payment required to be made by such Lender under this Agreement, Anixter may remove or replace such Lender in accordance with Section 10.14.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans and to fund participations in Swing Line Loans, Letters of Credit and Foreign Currency Loans are several and not joint. The failure of any Lender to make any Committed Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Committed Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Sources: Revolving Credit Agreement (Anixter International Inc)
Payments Generally. Payments by the Sub-subtenant to the Sub-sublandlord of whatsoever nature required or contemplated by this Sub-sublease shall:
(a) Unless otherwise specified herein, the Borrower shall make each payment required to be made by it hereunder (including under Section 2.13, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, on the date when due and in immediately available fundshereunder, without notice or demand therefor and without any abatement, set-off off, compensation or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Agent, deduction whatsoever except as may be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent at its offices at ▇otherwise provided herein at: 3▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Road, 10th FloorOttawa, HoustonOntario, Texas 77002K1V 1C1, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, Accounts Receivable or at such other office in place as the United States Sub-sublandlord may designate from time to time to the Sub-subtenant; no event, act, circumstance, change of America as directed by Paying Agentlaws, except political, constitutional or governmental change, or any other matter whatsoever, whether foreseen or unforeseen, ordinary or extraordinary, and whether or not within the contemplation of the parties at the commencement of the Term shall relieve the Sub-subtenant of the obligation to pay all Rent payable hereunder; without limiting the generality of the foregoing, the Sub-subtenant agrees that payments it shall not have any right of deduction, set-off or abatement whatsoever with respect to any claims that it may have against the Sub-sublandlord pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account or in respect of any other Person agreement with the Sub-sublandlord (unless Additional Rent has been overpaid in any calendar year, in which case the Sub-sublandlord shall issue a credit note in favour of the Sub-subtenant to set-off the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to overpaid amount against the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.Rent payment);
(b) If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees towards amounts then due hereunder, ratably among outstanding hereunder in such manner as the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.Sub-sublandlord reasonably determines; and
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment bear interest at the rate specified in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion Section 7.6 of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice Sublease from the Borrower prior due date to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agentpayment, at the Federal Funds Effective Ratecalculated daily, before and after demand, default and judgment.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent’s Office in Dollars and in immediately available funds, without set-off funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period”, if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent's Office in Dollars and in immediately available funds, without set-off funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fees shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period", if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or set-off. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent’s Office in U.S. Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available funds, without set-off or counterclaimlike funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 12:00 noon shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 a Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If Unless any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for hereunder, that such Borrower or such Lender, as the account of the relevant Lenders hereunder that the Borrower case may be, will not make such payment, the Paying Administrative Agent may assume that such Borrower or such Lender, as the Borrower case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if such Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed to it to but excluding the date of payment repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateOvernight Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the applicable Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Committed Loan, British Pound Sterling Loan or Canadian Dollar Loan, as the case may be, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon such Borrower, and such Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or any Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error. Upon any Lender failing to make such payment required to be made by such Lender under this Agreement, Anixter may remove or replace such Lender in accordance with Section 10.14.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans and to fund participations in Swing Line Loans, Letters of Credit, British Pound Sterling Loans, Canadian Dollar Loans and Canadian Banker’s Acceptances are several and not joint. The failure of any Lender to make any Committed Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Committed Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Sources: Revolving Credit Agreement (Anixter International Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense (other than payment in full), recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent’s Office in Dollars and in immediately available funds, without set-off funds not later than 12:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, 12:00 p.m. shall in the discretion of the Paying Agent, each case be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.12(d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Borrowing set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Term Loans are several and not joint. The failure of any Lender to make any Loan required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy so make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(h) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, if at any time following the occurrence and during the continuation of an Event of Default, but prior to the exercise of remedies as provided for in Section 9.02, payment is made by the Borrower and is applied to payment of principal or interest on the Loans, such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidpayment shall be applied ratably to the unpaid principal or interest, as the case may be, of the Loans (and breakage, termination or other payments and any interest accrued thereon).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Ardent Health Partners, LLC)
Payments Generally. (a) Unless otherwise specified herein, the The Borrower shall make each payment required to be made by it hereunder (including under Section 2.13, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, on the date when due and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made pay to the Paying Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇when due, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(b) If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such partiesterms hereof, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lender Group (i) such fees as are set forth in the Fee Letter (which fees shall be sufficient to pay all fees owing to the Agents and Lenders), (ii) all principal of and interest on the Loans, (or) all amounts payable as Deemed Collections, and (or) all other amounts required to be paid to the Agents or the Lenders hereunder, including without limitation under Clauses 2.11 (Breakage Costs), 2.14 (Indemnity for Reserves and Expenses), 2.15 (Indemnity for Taxes), 10 (Indemnities by the Borrower) and 11.4 (Costs and Expenses). If any Person fails to pay any such secured Transaction Party Obligations when due, such Person agrees to pay, on demand, interest at the Default Rate in respect thereof until paid. Notwithstanding the foregoing, no provision of this Agreement or the Fee Letter shall require the payment or permit the collection of any amounts hereunder that in excess of the maximum permitted by applicable law. If at any time the Borrower will not make receives any Collections or is deemed to receive any Collections, the Borrower shall immediately pay such Collections or Deemed Collections to the Servicer for application in accordance with the terms and conditions hereof and, at all times prior to such payment, the Paying Agent may assume that such Collections or Deemed Collections shall be held in trust by the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute for the exclusive benefit of the Secured Parties.
(b) On each Business Day that is prior to the relevant Lenders the amount due. In such eventFacility Termination Date and on which no Facility Event is continuing (each, if the Borrower has not in fact made such payment, then a “Repeat Advance Date”) after each of the relevant Lenders severally agrees conditions in Clause 3.3 (Conditions Precedent to repay All Repeat Advances) have been met, any Collections (including Deemed Collections) received by the Servicer and deposited in the Borrower Concentration Account shall be advanced to the Paying Borrower to the extent (and only to the extent) that after giving effect to such Repeat Advances, the Aggregate Principal Balance shall be equal to such Aggregate Principal Balance immediately prior to the receipt of such Collections; provided, further, that no such Repeat Advances may be made if, after giving effect to such Repeat Advances, the Percentage Factor would exceed the Maximum Percentage Factor, as determined by reference to the most recent Interim Report.
(c) On any Business Day other than a Repeat Advance Date until the Final Payout Date, the Servicer shall set aside in the Borrower Concentration Account and hold in trust, for the holder of each, all Collections received on such day. On any Business Day other than a Repeat Advance Date, until all Secured Obligations have been paid in full, the Servicer shall, upon one Business Day’s prior notice to the Agents (or sooner if directed by the Administrative Agent) (i) remit to the Administrative Agent forthwith on demand or Agent’s account the amounts set aside pursuant to the preceding sentence, and (ii) apply such amounts in accordance with Clause 2.6 (Application of Collections Prior to Facility Termination Date).
(d) No payment of any of the Secured Obligations shall be considered paid or applied hereunder to the extent that, at any time, all or any portion of such payment or application is rescinded by application of law or judicial authority, or must otherwise be returned or refunded for any reason. The Borrower shall remain obligated for the amount of any payment or application so distributed rescinded, returned or refunded, and shall promptly pay to the Administrative Agent (for application to the Person or Persons who suffered such Lender with rescission, return or refund) the full amount thereof, plus the interest thereon, for each day at the Default Rate from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agentany such rescission, at the Federal Funds Effective Ratereturn or refunding.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17at the Administrative Agent's Office in Dollars and in immediately available funds not later than 10:00 a.m., or otherwise) prior to 12:00 noon, New York City California time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 10:00 a.m., without set-off or counterclaim. Any amounts received after such time on any date mayCalifornia time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective Rate.Rate from time to time in effect; and
(eii) If if any Lender shall fail failed to make any payment required such payment, such Lender shall forthwith on demand pay to be the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by it pursuant the Administrative Agent to Section 2.05(bthe Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") or 2.15(d)at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan, included in the Paying applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent maymay make a demand therefor upon the Borrower, in its discretion (notwithstanding any contrary provision hereof)and the Borrower shall pay such amount to the Administrative Agent, apply any amounts thereafter received by the Paying Agent together with interest thereon for the account Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidhereunder.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required to be made by it hereunder (including under Section 2.13, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, on the date when due and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date Administrative Agent may, in the discretion of the Paying Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: and ▇▇▇▇▇▇▇▇ hereby authorizes Administrative Agent to, debit any deposit account of Borrower with Administrative Agent for all payments of principal, interest, fees and other amounts due under the Loan Documents as they become due, provided that Administrative Agent shall first debit ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying ▇▇’s account no. 4159601087 with Administrative Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of before debiting any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccount.
(b) If All payments to be made by Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrower hereunder shall be made to Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent’s Office in same day funds not later than noon, Portland time, on the date specified herein. All payments received by Administrative Agent after noon, Portland time shall be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue.
(c) Subject to the definition of “Interest Period,” if any payment to be made by Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day.
(d) Subject to Section 9.4 (which provisions shall apply at any time an Event of Default has occurred and is continuing), if at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied in the following order: (i) first, to pay toward costs and expenses incurred by Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunderhereunder with respect to the Revolving B Loans, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, (iii) third, toward repayment of interest and (ii) second, to pay principal and unreimbursed LC Disbursements fees then due hereunderhereunder with respect to the Revolving A Loans and Swing Loans, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, (iv) fourth, toward repayment of principal then due hereunder with respect to the Revolving B Loans, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties, and unreimbursed LC Disbursements (v) fifth, toward repayment of principal SECOND AMENDED AND RESTATED CREDIT AGREEMENT then due hereunder with respect to the Revolving A Loans and Swing Loans, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(ce) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Unless Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying has notified Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from is required to be made by it to Administrative Agent hereunder, that Borrower or such Lender, as the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower case may be, will not make such payment, the Paying Administrative Agent may assume that Borrower or such Lender, as the Borrower case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to Administrative Agent in same day funds, then:
(i) if Borrower failed to make such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent Lender shall forthwith on demand repay to Administrative Agent the amount so distributed portion of such assumed payment that was made available to such Lender in same day funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in same day funds, at the applicable Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to Administrative Agent the amount thereof in same day funds, together with interest thereon for the period from the date such amount was made available by Administrative Agent to Borrower to the date such amount is recovered by Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. If such Lender pays such amount to Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which Administrative Agent or Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of Administrative Agent to any Lender with respect to any amount owing under this subsection (e) shall be conclusive, absent manifest error.
(ef) If any Lender shall fail makes available to make Administrative Agent funds for any payment required Loan to be made by it pursuant such ▇▇▇▇▇▇ as provided in this Article II, and the applicable conditions in Article V are not satisfied or waived in accordance with the terms hereof, Administrative Agent shall return such funds (in like funds as received from such Lender) to Section 2.05(bsuch Lender, without interest.
(g) or 2.15(d)The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan.
(h) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner. SECOND AMENDED AND RESTATED CREDIT AGREEMENT
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Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrowers of principal, interest, fees and other Obligations shall be absolute and unconditional and shall be made without condition or deduction for any counterclaim, defense, recoupment, setoff or rescission. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent’s Office in Dollars and in immediately available funds, without set-off or counterclaim. Any amounts received after such funds not later than 12:00 p.m. New York time on any the date may, specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the discretion of the Paying Agent, Administrative Agent after 12:00 p.m. New York time shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) If any payment to be made by the Borrowers shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c) Prior to an Event of Default, if at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsUnreimbursed L/C Amounts, interest and fees then due hereunder, such funds shall be applied applied
(i) first, toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent,
(ii) second, toward costs and expenses (including funding losses and Attorney Costs and amounts payable under Article III) incurred by the Lenders, ratably among the parties entitled thereto in accordance with the amounts of costs and expenses then due to pay such parties,
(iii) third, toward repayment of interest and fees (including any prepayment fee, Unused Commitment Fee or any fees due and payable under the Fee Letter) then due hereunder with respect to the Term Loan and Delayed Draw Loan ratably among the parties entitled thereto, in accordance with the amounts of interest and fees then due hereunderto such parties,
(iv) fourth, toward repayment of interest and fees (including any Unused Commitment Fee) then due hereunder with respect to the Revolving Loans and Unreimbursed L/C Amounts (first, to Unreimbursed L/C Amounts to the full extent thereof and then to the Revolving Loans), ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties,
(v) fifth, toward repayment of principal with respect to the Term Loan and (ii) second, to pay principal and unreimbursed LC Disbursements Delayed Draw Loan then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties, and
(vi) sixth, toward repayment of principal on the Revolving Loans and unreimbursed LC Disbursements Unreimbursed L/C Amounts (first, to Unreimbursed L/C Amounts to the full extent thereof and then to the Revolving Loans), then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(cd) If Unless any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents Administrative Agent, prior to the foregoing and agrees, date any payment is required to be made by it to the extent it may effectively do so under applicable lawAdministrative Agent hereunder, that any Lender acquiring a participation pursuant to Borrower or such Lender, as the foregoing arrangements case may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower be, will not make such payment, the Paying Administrative Agent may assume that the Borrower Borrowers or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if any Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrowers to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrowers, and the Borrowers shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Commitment, Delayed Draw Commitment or to prejudice any rights which the Administrative Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder.
(iii) In the event that any Lender fails to make available to the Administrative Agent such Lender’s Pro Rata Share of any Borrowing by the Borrowers in accordance with the provisions of this Section 2.02 hereof, and the Borrowers do not repay to the Administrative Agent such Lender’s Pro Rata Share of the Borrowing within three (3) Business Days after such Borrowing, the Administrative Agent shall have the right to recover such Lender’s Pro Rata Share of the Borrowing directly from such Lender, together with interest thereon from the date of the Borrowing at the rate per annum applicable to such Borrowing. In addition, until the Administrative Agent recovers such amount, (x) such Lender shall not be entitled to receive any payments under Section 2.05, Section 2.07 or 2.08 hereof, and (y) for purposes of voting on or consenting to other matters with respect to this Agreement or the other Loan Documents, such Lender’s Commitment shall be deemed to be zero and such Lender shall not be considered to be a Lender. A notice of the Administrative Agent to any Lender or the Borrower Representative with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) the Borrowers by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or 2.15(d)waived in accordance with the terms hereof, then the Paying Administrative Agent mayshall return such funds (in like funds as received from such Lender) to such Lender, in without interest.
(f) The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its discretion (notwithstanding any contrary provision hereof)corresponding obligation to do so on such date, apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. The Administrative Agent is authorized to deduct all principal, interest and all other fees and expenses due from any of the Borrower's checking accounts maintained with the Administrative Agent. If such payments are not taken from the Borrower's checking accounts, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City Seattle time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 2:00 p.m., without set-off or counterclaim. Any amounts received after such time on any date maySeattle time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay ----- toward costs and expenses (including Attorney Costs and amounts payable under Section 3) incurred by the Administrative Agent and each Lender, (ii) second, --------- ------ toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C ----- Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal ------------------- Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Committed Loan, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Section 2, and the conditions to the applicable Credit Extension set forth --------- in Section 2.05(b4 are not satisfied or waived in accordance with the terms hereof, --------- the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Committed Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Committed Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Sources: Credit Agreement (Flir Systems Inc)
Payments Generally. PRO RATA TREATMENT; SHARING OF SET-OFFS.
(a) Unless otherwise specified herein, the The Borrower shall make each payment required to be made by it hereunder (including whether of principal, interest, fees or reimbursement of LC Disbursements, or under Section 2.13, 2.14, 2.172.14 or 2.15, or otherwise) prior to 12:00 noon1:00 p.m., New York City Boston, Massachusetts time, on the date when due and due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Administrative Agent at such of its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇in Boston, 10th FloorMassachusetts as shall be notified to the relevant parties from time to time, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan except payments to be made directly to the Issuing Lender as expressly provided herein and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 2.15 and 9.03 10.3 shall be made directly to the Persons entitled thereto. The Paying Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof, and the Borrower shall have no liability in the event timely or correct distribution of such payments is not so made. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in U.S. dollars.
(b) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) Except to the extent otherwise provided herein: (i) each borrowing of Revolving Credit Loans, each payment of commitment fees under Section 2.10 and each termination or reduction of the amount of the Revolving Credit Commitments under Section 2.7 shall be applied pro rata according to Revolving Credit Commitments; (ii) each payment or prepayment by the Borrower of principal of Revolving Credit Loans shall be made for account of the Revolving Credit Lenders pro rata in accordance with the respective unpaid principal amounts of the Revolving Credit Loans held by them; (iii) each payment by the Borrower of interest on Revolving Credit Loans shall be made for account of the Revolving Credit Lenders pro rata in accordance with the amounts of interest on such Revolving Credit Loans then due and payable to the Revolving Credit Lenders; and (iv) each payment by the Borrower of participation fees in respect of Letters of Credit shall be made for the account of the Revolving Credit Lenders pro rata in accordance with the amount of participation fees then due and payable to the Revolving Credit Lenders.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans (or participations in LC Disbursements Disbursements) resulting in such Lender receiving payment of a greater proportion of the aggregate principal amount of its Loans (and participations in LC Disbursements Disbursements) and accrued interest thereon than the proportion of such amounts received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans (and participations in LC Disbursements Disbursements) of the other Lenders to the extent necessary so that the benefit of all such payments shall be shared by all the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans (and participations in LC Disbursements); provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans (or participations in LC Disbursements Disbursements) to any assignee or participant, other than to the Borrower any Credit Party or any Subsidiary subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(de) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by date on which any payment from the Borrower is due to the Paying Administrative Agent for the account of the relevant Lenders or the Issuing Lender entitled thereto (the "Applicable Recipient") hereunder that the Borrower will not make such payment, -------------------- the Paying Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders Applicable Recipient the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders Applicable Recipient severally agrees to repay to the Paying Administrative Agent forthwith on demand the amount so distributed to such Lender Applicable Recipient with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Administrative Agent, at the Federal Funds Effective Rate.
(ef) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b2.4(d), 2.4(e), 2.5(b) or 2.15(d2.16(e), then the Paying Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Administrative Agent for the account of such Lender to satisfy such Lender’s 's obligations under such Sections Section until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Teltrust Inc)
Payments Generally. (ai) Unless otherwise specified herein, the Borrower The Lessee shall make each payment or prepayment required to be made by it hereunder (including or by the Lessor under Section 2.13, 2.14, 2.17, or otherwise) the Operative Documents prior to 12:00 noon2:00 p.m., New York City time, on the date when due and or the date fixed for any prepayment hereunder, in immediately available funds, without set-off setoff, recoupment or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments owing to the Administrative Agent, the Facility Lenders or the Lessor shall be made to the Paying Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, Payment Office on Schedule II (or at to such other office as the Administrative Agent may from time to time designate in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly a written notice to the Persons entitled theretoother parties hereto). The Paying Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof, and any payments to be distributed to any Facility Lender shall be directed to the Payment Office of such Facility Lender (or to such other office as such Facility Lender may from time to time designate in a written notice to the Administrative Agent). If Unless otherwise provided for herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars.
(bii) If at any time insufficient funds are received by and available In addition to the Paying Agent to pay fully all amounts requirements of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied clause (i) firstabove, Lessor hereby irrevocably directs Lessee to pay interest and fees then to Administrative Agent all Basic Rent that is due hereunder, ratably among to Lessor from time to time; Lessor hereby irrevocably directs Lessee to make all payments of Supplemental Rent directly to the parties applicable Person entitled thereto in accordance with the amounts Lease and the terms of interest this Participation Agreement other than (i) Excepted Payments, which shall be made to Lessor and fees then due to such partiespaid in accordance with the terms of the Lease and the Ground Lease, respectively and (ii) secondamounts owed to the Administrative Agent or any Facility Lender, which shall be deposited in the Supplemental Rent Payment Fund (or, in the case of Debt Service Reserve Backstop Payments, the Debt Service Reserve Fund). ▇▇▇▇▇▇ hereby agrees to pay principal such directions. Lessor and unreimbursed LC Disbursements then due hereunder, ratably among Lessee agree that all payments of Basic Rent shall be paid by the parties entitled thereto Lessee into one of two sub-accounts in accordance a segregated deposit account established by the Lessee with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off Administrative Agent on or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders prior to the extent necessary so that Document Closing Date for the benefit sole purpose of all accepting such payments shall be shared by (the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements“Basic Rent Payment Fund”); provided that provided, (i) if any such participations are purchased all Accrual Rent and all or any portion Capital Rent shall be deposited by the Lessee into a sub- account of the payment giving rise thereto is recovered, such participations shall be rescinded and Basic Rent Payment Fund established by the purchase price restored Lessee on or prior to the extent Document Closing Date for the sole purpose of accepting such recovery, without interest, payments (the “Debt Service Payment Sub- Account”) and (ii) the provisions of this paragraph all Coverage Rent and shall not be construed to apply to any payment made deposited by the Borrower pursuant Lessee into a sub-account of the Basic Rent Payment Fund established by the Lessee on or prior to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration Document Closing Date for the assignment sole purpose of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to accepting such payments (the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply“Coverage Rent Payment Sub-Account”). The Borrower consents to the foregoing Lessor and agreesLessee agree that payments of Supplemental Rent, to the extent it may effectively do so under applicable lawrequired by the other provisions of this Section 4.2(a)(ii), that any Lender acquiring shall be paid directly to Administrative Agent into a participation pursuant segregated deposit account established by the Lessee with the Administrative Agent on or prior to the foregoing arrangements may exercise against Document Closing Date for the Borrower rights sole purpose of set-off and counterclaim with respect to accepting such participation as fully as if such Lender were a direct creditor of payments (the Borrower in the amount of such participation“Supplemental Rent Payment Fund”).
(diii) Unless the Paying Agent shall have received notice from the Borrower prior ▇▇▇▇▇▇ agrees to remit all prepayments to the time by which any payment from Administrative Agent on the Borrower is due to Lessor’s behalf, and the Paying Administrative Agent for will, on the account of the relevant Lenders hereunder that the Borrower will not make Lessor’s behalf, apply such payment, the Paying Agent may assume that the Borrower has made such payment on such date amounts in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective RateSection 5.3.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Sublease Agreement
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(ci) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Fixed Period Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Committed Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If any Lender shallfailed to make such payment, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of shall forthwith on demand pay to the aggregate Administrative Agent the amount of its Loans and participations thereof in LC Disbursements and accrued immediately available funds, together with interest thereon than for the proportion received period from the date such amount was made available by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders Administrative Agent to the extent necessary so that Borrower to the benefit of all date such payments shall be shared amount is recovered by the Lenders ratably Administrative Agent (the “Compensation Period”) at a rate per annum equal to the greater of (A) the Federal Funds Rate from time to time in effect and (B) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the aggregate Administrative Agent in connection with the foregoing. If such Lender pays such amount of principal of and accrued interest on their respective Loans and participations to the Administrative Agent, then such amount shall constitute such Lender’s Committed Loan included in LC Disbursements; provided that (i) if any the applicable Borrowing. If such participations are purchased and all or any portion of Lender does not pay such amount forthwith upon the payment giving rise thereto is recoveredAdministrative Agent’s demand therefor, such participations shall be rescinded the Administrative Agent may make a demand therefor upon the Borrower, and the purchase price restored Borrower shall pay (subject to the extent its recoupment rights from and remedies against such defaulting Lender of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made breakage costs paid by the Borrower pursuant when repaying such amount) such amount to and in accordance the Administrative Agent, together with interest thereon for the express terms Compensation Period at a rate per annum equal to the rate of this Agreement interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any payment obtained by a rights which the Administrative Agent or the Borrower may have against any Lender as consideration a result of any default by such Lender hereunder. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the assignment of same or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participantan overlapping period, other than the Administrative Agent shall promptly remit to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationinterest paid by the Borrower for such period.
(dii) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by date on which any payment from the Borrower is due to the Paying Administrative Agent for the account of the relevant Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Paying Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Paying Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Administrative Agent, at the greater of the Federal Funds Effective RateRate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall fail return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.05(b) are several and not joint. The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 10.05(b) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent responsible for the account failure of such any other Lender to satisfy such Lender’s obligations so make its Committed Loan, to purchase its participation or to make its payment under such Sections until all such unsatisfied obligations are fully paidSection 10.05(b).
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the The Borrower shall make each payment required to be made by it hereunder (including whether of principal, interest or fees, or under Section 2.13, 2.14, 2.172.5 or 2.6, or otherwise) prior to 12:00 noon, noon (New York City time, ) on the date when due due, in Dollars and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying AgentLender, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereonDay. All such payments shall be made to the Paying Agent Lender at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇390 Greenwich Street, 10th 3rd Floor, HoustonNew York, Texas 77002, Attention: ▇New York 10013. If any ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇ ▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇ ▇▇▇▇ness Day, the date for payment shall be extended to the next succeeding Business Day (unless such succeeding Business Day falls in the next calendar month, in which case the date for such payment shall be the next preceeding Business Day, ) and, in the case of any extension of the due date for any payment accruing interest, interest thereon shall be payable for the period of such extension.
(b) If at any time insufficient funds are received by and available to the Paying Agent Lender to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the then to pay fees and other amounts of interest and fees due hereunder, then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If The Borrower agrees that at any Lender shalltime after the occurrence and during the continuance of an Event of Default, by exercising in addition to (and without limitation of) any right of set-off off, banker's lien, or counterclaim the Lender may otherwise have, the Lender shall be entitled, at its option and to the fullest extent permitted by law, to offset balances held by it for the account of the Borrower at any of its offices, in Dollars or otherwisein any other currency, obtain payment in respect of against any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than Advance to the Borrower hereunder, or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor other obligation of the Borrower in the amount hereunder, which is not paid when due (regardless of whether such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is balances are then due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and mayBorrower), in reliance upon which case it shall promptly notify the Borrower; provided, that failure to give such assumption, distribute to notice shall not affect the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Ratevalidity thereof.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Loan Agreement (DST Systems Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(ci) Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Fixed Period Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Committed Loans, prior to 12:00 noon on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section 2.02) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. If any Lender shallfailed to make such payment, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of shall forthwith on demand pay to the aggregate Administrative Agent the amount of its Loans and participations thereof in LC Disbursements and accrued immediately available funds, together with interest thereon than for the proportion received period from the date such amount was made available by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders Administrative Agent to the extent necessary so that Borrower to the benefit of all date such payments shall be shared amount is recovered by the Lenders ratably Administrative Agent (the “Compensation Period”) at a rate per annum equal to the greater of (A) the Federal Funds Rate from time to time in effect and (B) a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by the aggregate Administrative Agent in connection with the foregoing. If such Lender pays such amount of principal of and accrued interest on their respective Loans and participations to the Administrative Agent, then such amount shall constitute such Lender’s Committed Loan included in LC Disbursements; provided that (i) if any the applicable Borrowing. If such participations are purchased and all or any portion of Lender does not pay such amount forthwith upon the payment giving rise thereto is recoveredAdministrative Agent’s demand therefor, such participations shall be rescinded the Administrative Agent may make a demand therefor upon the Borrower, and the purchase price restored Borrower shall pay (subject to the extent its recoupment rights from and remedies against such defaulting Lender of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made breakage costs paid by the Borrower pursuant when repaying such amount) such amount to and in accordance the Administrative Agent, together with interest thereon for the express terms Compensation Period at a rate per annum equal to the rate of this Agreement interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any payment obtained by a rights which the Administrative Agent or the Borrower may have against any Lender as consideration a result of any default by such Lender hereunder. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the assignment of same or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participantan overlapping period, other than the Administrative Agent shall promptly remit to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationinterest paid by the Borrower for such period.
(dii) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by date on which any payment from the Borrower is due to the Paying Administrative Agent for the account of the relevant Lenders or the L/C Issuer hereunder that the Borrower will not make such payment, the Paying Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders or the L/C Issuer, as the case may be, severally agrees to repay to the Paying Administrative Agent forthwith on demand the amount so distributed to such Lender or the L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Administrative Agent, at the greater of the Federal Funds Effective RateRate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall fail return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 10.05(b) are several and not joint. The failure of any Lender to make any Committed Loan, to fund any such participation or to make any payment under Section 10.05(b) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent responsible for the account failure of such any other Lender to satisfy such Lender’s obligations so make its Committed Loan, to purchase its participation or to make its payment under such Sections until all such unsatisfied obligations are fully paidSection 10.05(b).
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified hereinAdministrative Agent may, and Borrower hereby authorizes Administrative Agent to, debit any deposit account of Borrower with Administrative Agent for all payments of principal, interest, fees and other amounts due under the Borrower Loan Documents as they become due, provided that Administrative Agent shall make each payment required first debit Borrower’s account no. 415960xxxxxx1087 with Administrative Agent, before debiting any other account.
(b) All payments to be made by it Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrower hereunder (including under Section 2.13shall be made to Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 at the applicable Administrative Agent’s Office in same day funds not later than noon, New York City Portland time, on the date when due and in immediately available fundsspecified herein. All payments received by Administrative Agent after noon, without set-off or counterclaim. Any amounts received after such Portland time on any date may, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(c) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(bd) If Subject to Section 9.4 (which provisions shall apply at any time an Event of Default has occurred and is continuing), if at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied in the following order: (i) first, to pay toward costs and expenses SECOND AMENDED AND RESTATED CREDIT AGREEMENT46 incurred by Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunderhereunder with respect to the Revolving B Loans, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, (iii) third, toward repayment of interest and (ii) second, to pay principal and unreimbursed LC Disbursements fees then due hereunderhereunder with respect to the Revolving A Loans and Swing Loans, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, (iv) fourth, toward repayment of principal then due hereunder with respect to the Revolving B Loans, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties, and unreimbursed LC Disbursements (v) fifth, toward repayment of principal then due hereunder with respect to the Revolving A Loans and Swing Loans, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(ce) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Unless Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying has notified Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from is required to be made by it to Administrative Agent hereunder, that Borrower or such Lender, as the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower case may be, will not make such payment, the Paying Administrative Agent may assume that Borrower or such Lender, as the Borrower case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to Administrative Agent in same day funds, then:
(i) if Borrower failed to make such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent Lender shall forthwith on demand repay to Administrative Agent the amount so distributed portion of such assumed payment that was made available to such Lender in same day funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in same day funds, at the applicable Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to Administrative Agent the amount thereof in same day funds, together with interest thereon for the period from the date such amount was made available by Administrative Agent to Borrower to the date such amount is recovered by Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. If such Lender pays such amount to Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which Administrative Agent or Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of Administrative Agent to any Lender with respect to any amount owing under this subsection (e) shall be conclusive, absent manifest error.
(ef) If any Lender shall fail makes available to make Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in this Article II, and the applicable conditions in Article V are not satisfied or waived in accordance with the terms hereof, Administrative Agent shall return such funds (in like funds as received from such Lender) to Section 2.05(bsuch Lender, without interest.
(g) or 2.15(d)The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan on any date required hereunder shall not relieve any SECOND AMENDED AND RESTATED CREDIT AGREEMENT47 other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan.
(h) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17at the Administrative Agent's Office in Dollars and in immediately available funds not later than 11:00 a.m., or otherwise) prior to 12:00 noon, New York City San Francisco time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 11:00 a.m., without set-off or counterclaim. Any amounts received after such time on any date maySan Francisco time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) Subject to the definition of "Interest Period" contained in Section 1.01, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient the funds are received by and available to the Paying Administrative Agent are not sufficient to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender to make any Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. PRO RATA TREATMENT; SHARING OF SET-OFFS.
(a) Unless otherwise specified herein, the Borrower The Borrowers shall make each payment required to be made by it the Borrowers hereunder (including whether of principal, interest, fees or reimbursement of LC Disbursements, or under Section 2.13, Sections 2.14, 2.172.15 or 2.16, or otherwise) prior to 12:00 noon1:00 p.m., New York City Boston, Massachusetts time, on the date when due and due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇in Boston, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying AgentMassachusetts, except that payments pursuant to Sections 2.10(c), 2.132.4, 2.14, 2.17 2.15 or 2.16 and 9.03 11.3 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereofthereof (subject to the provisions of Subsections 2.5(c) and 2.5(d) hereof), and the Borrowers shall have no liability in the event timely or correct distribution of such payments is not so made. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in U.S. dollars. Subject to the conditions to borrowing set forth herein, payment of interest, fees and any other amounts due to be paid by the Borrowers hereunder shall be made through the automatic funding of a Base Rate Borrowing in an amount equal to the amount of such interest, fees or other amounts due to be paid by the Borrowers hereunder, and the Borrowers hereby irrevocably authorize and direct the Agent to take such actions as may necessary to effectuate such automatic funding of Base Rate Borrowings. To the extent that any such interest, fee or other amount is paid through the automatic funding of a Base Rate Borrowing, the Borrowers' obligation to make such payment shall be discharged and replaced by the resulting Base Rate Borrowing. If the Borrowers cannot satisfy the conditions to borrowing set forth herein such that the payment of any interest, fees or other amounts cannot be made through the automatic funding of a Base Rate Borrowing, the Borrowers shall be obligated to pay the full amount of such interest, fees or other amounts as and when the same shall become due.
(b) If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunderhereunder under any circumstances, including, without limitation during, or as a result of the exercise by the Agent or the Lenders of remedies under the Loan Documents and applicable law, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiesparties and (iii) third, to obligations with respect to Hedging Agreements entered into by a Lender or an Affiliate of a Lender, in each case regardless of whether such funds are the proceeds of Collateral that is security for less than all of the Loans.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans (or participations in LC Disbursements Disbursements) (other than pursuant to Sections 2.4, 2.14 or 2.16), resulting in such Lender receiving payment of a greater proportion of the aggregate principal amount of its Loans (and participations in LC Disbursements Disbursements) and accrued interest thereon than the proportion of such amounts received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans (and participations in LC Disbursements Disbursements) of the other Lenders to the extent necessary so that the benefit of all such payments shall be shared by all the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans (and participations in LC Disbursements); provided PROVIDED that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest unless the Lender from which such payment is recovered is required to pay interest thereon, in which case each Lender returning funds to such Lender shall pay its pro rata share of such interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans (or participations in LC Disbursements Disbursements) to any assignee or participant, other than to the Borrower any Credit Party or any Subsidiary or Affiliate thereof of a Credit Party (as to which the provisions of this paragraph shall apply). The Borrower consents Borrowers consent to the foregoing and agreesagree, to the extent it they may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Borrowers rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Borrowers in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower Borrowers prior to the time by date on which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders or the Issuing Lender entitled thereto (the "APPLICABLE RECIPIENT") hereunder that the Borrower Borrowers will not make such payment, the Paying Agent may assume that the Borrower has Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders Applicable Recipient the amount due. In such event, if the Borrower has Borrowers have not in fact made such payment, then each of the relevant Lenders Applicable Recipient severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender Applicable Recipient with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(bSections 2.4(d), 2.4(e), 2.5(b) or 2.15(d2.8(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s 's obligations under such Sections Section until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent’s Office in Dollars and in immediately available funds, without set-off funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period”, if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to pay such parties, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent's Office in Dollars and in immediately available funds, without set-off funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period", if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender within one Business Day, without interest (provided that if such funds are not returned to such Lender within one Business Day, the Administrative Agent shall pay interest thereon from the date one Business Day after the Lender makes such funds available to the Administrative Agent to the date such funds are returned at a rate per annum equal to the Federal Funds Rate).
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of L/C Borrowings and then, principal and unreimbursed LC Disbursements then due hereunderhereunder or pursuant hereto, ratably among the parties entitled thereto in accordance with the amounts of principal L/C Borrowings and unreimbursed LC Disbursements principal, as the case may be, then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and (ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Revolving Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Revolving Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Revolving Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Revolving Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner; provided, however, that the foregoing shall not affect the obligation of any Lender to make, continue and convert Loans in accordance with the terms and provisions hereof.
Appears in 1 contract
Sources: Credit Agreement (Bj Services Co)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noonat the Administrative Agent's Office in Dollars and in immediately available funds not later than 1:00 p.m., New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 1:00 p.m., without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by by, and available to to, the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest interest, fees and fees undisputed costs and expenses then due hereunder, such funds shall be applied (i) firstFIRST, to pay toward undisputed costs and expenses (including Attorney Costs and amounts payable under ARTICLE III) incurred by the Administrative Agent and each Lender, (ii) SECOND, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondTHIRD, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(c) If any Lender shall. Notwithstanding the foregoing, by exercising any right of setpayments to Non-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest Continuing Lenders may be made on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower non-ratable basis pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationSECTION 2.15.
(d) Unless the Paying Borrower or any Lender has notified the Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "COMPENSATION PERIOD") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this ARTICLE II, and the conditions to Section 2.05(bthe applicable Loan set forth in ARTICLE IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. PRO RATA TREATMENT; SHARING OF SET-OFFS.
(a) Unless otherwise specified herein, the The Borrower shall make each payment required to be made by it hereunder (including whether of principal, interest, fees or reimbursement of LC Disbursements, or under Section 2.13, 2.14, 2.172.14 or 2.15, or otherwise) prior to 12:00 noon, New York City Boston, Massachusetts time, on the date when due and due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent at such of its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇in Boston, 10th FloorMassachusetts as shall be notified to the relevant parties from time to time, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan except payments to be made directly to the Issuing Lender as expressly provided herein and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 2.15 and 9.03 10.3 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof, and the Borrower shall have no liability in the event timely or correct distribution of such payments is not so made. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in U.S. dollars.
(b) If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) Except to the extent otherwise provided herein: (i) each borrowing of Loans of a particular Class from the Lenders under Section 2.1 shall be made from the relevant Lenders, each payment of commitment fee under Section 2.10 in respect of Commitments of a particular Class shall be made for account of the relevant Lenders, and each termination or reduction of the amount of the Commitments of a particular Class under Section 2.3 shall be applied to the respective Commitments of such Class of the relevant Lenders, pro rata according to the amounts of their respective Commitments of such Class; (ii) Eurodollar Loans of any Class having the same Interest Period shall be allocated pro rata among the relevant Lenders according to the amounts of their Commitments or such Class (in the case of the making of Loans) or their respective Loans of such Class (in the case of conversions and continuations of Loans); (iii) each payment or prepayment by the Borrower of principal of Loans of a particular Class shall be made for account of the relevant Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans of such Class held by them; (iv) each payment by the Borrower of interest on Loans of a particular Class shall be made for account of the relevant Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to the respective Lenders; and (v) each payment by the Borrower of participation fees in respect of Letters of Credit shall be made for the account of the Revolving Credit Lenders pro rata in accordance with the amount of participation fees then due and payable to the Revolving Credit Lenders.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans (or participations in LC Disbursements Disbursements) resulting in such Lender receiving payment of a greater proportion of the aggregate principal amount of its Loans (and participations in LC Disbursements Disbursements) and accrued interest thereon than the proportion of such amounts received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans (and participations in LC Disbursements Disbursements) of the other Lenders to the extent necessary so that the benefit of all such payments shall be shared by all the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans (and participations in LC Disbursements); provided PROVIDED that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans (or participations in LC Disbursements Disbursements) to any assignee or participant, other than to the Borrower any Credit Party or any Subsidiary subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(de) Unless the Paying Agent shall have received notice from the Borrower prior to the time by date on which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders or the Issuing Lender entitled thereto (the "APPLICABLE RECIPIENT") hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders Applicable Recipient the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders Applicable Recipient severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender Applicable Recipient with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(ef) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b2.4(d), 2.4(e), 2.5(b) or 2.15(d2.16(e), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s 's obligations under such Sections Section until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally. (ai) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it any Loan Party hereunder (including under Section 2.13shall be made without condition or deduction for any counterclaim, 2.14defense, 2.17recoupment or setoff. Except as otherwise expressly provided herein, or otherwise) prior all payments by any Loan Party hereunder shall be made to 12:00 noonAdministrative Agent, New York City timefor the account of the respective Lenders to which such payment is owed, on at the date when due Administrative Agent's Office in Dollars and in immediately available fundsfunds not later than 11:00 a.m. on the date specified herein. Administrative Agent will promptly distribute to each Lender its applicable Percentage Share (or other applicable share as provided herein), without set-off or counterclaimif any, of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 11:00 a.m. shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereonor fee shall continue to accrue. All such payments If any payment to be made by any Loan Party has come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(ii) Each Borrower hereby authorizes Administrative Agent to deduct automatically from any account of any Borrower maintained with or for the benefit of Administrative Agent, or to charge to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇Loan Account, 10th Floorall principal, Houstoninterest, Texas 77002fees, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇costs, Loan and Agency Services Groupexpenses, or other amounts payable hereunder or under any other Loan Document (including any reimbursable legal fees or expenses) owing by any Borrower when due (or, if not made when due, at such other office in the United States any time thereafter). Administrative Agent agrees to provide written notice to Borrowers of America as directed by Paying Agent, except that payments any automatic deduction made pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 this Section 2.10(a)(ii) showing in reasonable detail the amounts of such deduction. Each Lender agrees to reimburse Borrowers based on its respective Percentage Share of the Commitments with respect to Borrowers for any amounts deducted from such accounts in excess of any amount due hereunder and 9.03 shall be made directly under any other Loan Documents. All amounts charged to the Persons entitled thereto. The Paying Agent Loan Account pursuant to this Section 2.10(a)(ii) shall distribute any such payments received by it thereupon constitute Revolving Loans for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(b) If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due Borrowers hereunder, such funds shall be applied (i) first, to pay interest and fees then due constitute Obligations hereunder, ratably among the parties entitled thereto in accordance with the amounts of and shall initially accrue interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Raterate then applicable to Revolving Loans.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Loan and Security Agreement (INVACARE HOLDINGS Corp)
Payments Generally. (a) Unless otherwise specified hereinExcept as provided below, all payments, including prepayments, of principal and interest on the Loans, of the Commitment Fee, any Incremental Commitment Fee, any Incremental Upfront Fee and of all other amounts to be paid by the Borrower shall make each payment required under the Loan Documents (the Commitment Fee, any Incremental Commitment Fee, and any Incremental Upfront Fee, any LC Fee and any LC Upfront Fee together with all such other fees, being sometimes hereinafter collectively referred to as the "Fees") shall, except as specified below, be made by it hereunder (including under Section 2.13to the Administrative Agent, 2.14, 2.17, or otherwise) prior to 12:00 noon1:00 p.m., New York City Boston, Massachusetts time, on the date when due such payment is due, for the account of the applicable Credit Parties at the Payment Office, in Dollars and in immediately available funds, without set-off off, offset, recoupment or counterclaim. Any amounts received after The failure of the Borrower to make any such payment by such time shall not constitute a Default, provided that such payment is made on such due date, but any such payment made after 1:00 p.m., Boston, Massachusetts time, on such due date may, in the discretion of the Paying Agent, shall be deemed to have been received made on the next succeeding Business Day for purposes the purpose of calculating interest thereonon amounts outstanding on the Loans. All As between the Borrower and each Credit Party, any payment by the Borrower to the Administrative Agent for the account of such payments Credit Party shall be made deemed to be payment by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇Borrower to such Credit Party. Notwithstanding the foregoing, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that all payments pursuant to Sections 2.10(c)3.5, 2.133.6, 2.143.7, 2.17 and 9.03 11.4, all Incremental Upfront Fees and all LC Upfront Fees shall be made paid directly to the Persons Credit Party entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under the Loan Documents shall be due and payable on a day that which is not a Business Day, the due date for payment thereof (except as otherwise provided with respect to Interest Periods) shall be extended to the next succeeding Business Day, and, Day and (except with respect to payments in respect of the case of any payment accruing interest, Fees) interest thereon shall be payable for at the period of applicable rate specified herein during such extension.
(b) If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursementsprovided, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable lawhowever, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of next Business Day would be after the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account maturity date of the relevant Lenders hereunder that the Borrower will not make such paymentFacility, the Paying Agent may assume that the Borrower has made such payment shall instead be due on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rateimmediately preceding Business Day.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified hereinAdministrative Agent may, and Borrower hereby authorizes Administrative Agent to, debit any deposit account of Borrower with Administrative Agent for all payments of principal, interest, fees and other amounts due under the Borrower Loan Documents as they become due, provided that Administrative Agent shall make each payment required first debit Borrower’s account no. xxxxxx1087 with Administrative Agent, before debiting any other account.
(b) All payments to be made by it Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by Borrower hereunder (including under Section 2.13shall be made to Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 at the applicable Administrative Agent’s Office in same day funds not later than noon, New York City Portland time, on the date when due and in immediately available fundsspecified herein. All payments received by Administrative Agent after noon, without set-off or counterclaim. Any amounts received after such Portland time on any date may, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue. Columbia – Second Amended and Restated Credit Agreement
(c) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(bd) If Subject to Section 9.4 (which provisions shall apply at any time an Event of Default has occurred and is continuing), if at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied in the following order: (i) first, to pay toward costs and expenses incurred by Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunderhereunder with respect to the Revolving B Loans, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, (iii) third, toward repayment of interest and (ii) second, to pay principal and unreimbursed LC Disbursements fees then due hereunderhereunder with respect to the Revolving A Loans and Swing Loans, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, (iv) fourth, toward repayment of principal then due hereunder with respect to the Revolving B Loans, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties, and unreimbursed LC Disbursements (v) fifth, toward repayment of principal then due hereunder with respect to the Revolving A Loans and Swing Loans, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties.
(ce) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Unless Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying has notified Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from is required to be made by it to Administrative Agent hereunder, that Borrower or such Lender, as the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower case may be, will not make such payment, the Paying Administrative Agent may assume that Borrower or such Lender, as the Borrower case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to Administrative Agent in same day funds, then:
(i) if Borrower failed to make such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent Lender shall forthwith on demand repay to Administrative Agent the amount so distributed portion of such assumed payment that was made available to such Lender in same day funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in same day funds, at the applicable Federal Funds Effective Rate.Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to Administrative Agent the amount thereof in same day funds, together with interest thereon for the period from the date such amount was made available by Administrative Agent to Borrower to the date such amount is recovered by Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. If such Lender pays such amount to Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which Administrative Agent or Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of Administrative Agent to any Lender with respect to any amount owing under this subsection (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d)conclusive, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidabsent manifest error.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City at the Administrative Agent's Office in Dollars and in immediately available funds not later than 1:00 p.m. Minneapolis time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available funds, without set-off or counterclaimlike funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent after such 1:00 p.m. Minneapolis time on any date may, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the US Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noonat the Administrative Agent's Office in Dollars and in immediately available funds not later than 1:00 p.m., New York City time, on the date when due specified herein. Except as otherwise expressly provided for herein, all payments made by the Dutch Borrower hereunder with respect to principal and interest on Offshore Currency Loans shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent's Office in euro in immediately available fundsfunds not later than 1:00 p.m., without set-off New York time, on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may1:00 p.m., New York time, shall in the discretion of the Paying Agent, each case be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereonor fee shall continue to accrue. All such payments of principal and interest in respect of (i) US Swing Line Loans shall be in Dollars and (ii) Offshore Currency Swing Line Loans, shall be made in euro.
(b) Subject to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States definition of America as directed by Paying Agent, except that payments pursuant "Interest Period," if any payment to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to by the Persons entitled thereto. The Paying Agent Borrowers shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by by, and available to to, the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest interest, fees and fees undisputed costs and expenses then due hereunder, such funds shall be applied (i) first, to pay toward undisputed costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(c) If any Lender shall. 50 Notwithstanding the foregoing, by exercising any right of setpayments to Non-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest Continuing Lenders may be made on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower non-ratable basis pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationSection 2.15.
(d) Unless the Paying US Borrower or any Lender has notified the Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the applicable Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that such Borrower or such Lender, as the Borrower case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if a Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective Rateapplicable Overnight Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the applicable Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the applicable Overnight Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the applicable Borrower, and the applicable Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the applicable Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Loan set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (aI) Unless otherwise specified hereinExcept as provided below, all payments, including prepayments, of principal and interest on the Revolving Loans, of the Commitment Fee, the Borrower shall make each payment required Letter of Credit Fees and of all other amounts to be paid by the Borrower under the Loan Documents (the Commitment Fee, the Letter of Credit Fees together with all of such other fees, being sometimes hereinafter collectively referred to as the "FEES") shall be made by it hereunder (including under Section 2.13to the Administrative Agent, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, 1:00 p.m. on the date when due such payment is due, for the account of the applicable Credit Parties at the Payment Office, in Dollars and in immediately available funds, without set-off off, offset, recoupment or counterclaim. Any amounts received after The failure of the Borrower to make any such payment by such time shall not constitute a Default, provided that such payment is made on such due date, but any such payment made after 1:00 p.m. on such due date may, in the discretion of the Paying Agent, shall be deemed to have been received made on the next succeeding Business Day for purposes the purpose of calculating interest thereonon amounts outstanding on the Revolving Loans. All As between the Borrower and each Credit Party, any payment by the Borrower to the Administrative Agent for the account of such payments Credit Party shall be made deemed to be payment by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇Borrower to such Credit Party. Notwithstanding the foregoing, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that all payments pursuant to Sections 2.10(c)3.5, 2.133.6, 2.143.7, 2.17 and 9.03 11.4 shall be made paid directly to the Persons Credit Party entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under the Loan Documents shall be due and payable on a day that which is not a Business Day, the due date for payment thereof (except as otherwise provided with respect to Interest Periods) shall be extended to the next succeeding Business Day, and, Day and (except with respect to payments in respect of the case of any payment accruing interest, Fees) interest thereon shall be payable for at the period of applicable rate specified herein during such extension, provided, however, that if such next Business Day would be after the Maturity Date, such payment shall instead be due on the immediately preceding Business Day.
(bII) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (iA) first, to pay towards payment of interest and fees then due hereunderunder the Loan Documents, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiB) second, to pay towards payment of principal and unreimbursed LC Disbursements then due hereunderunder the Loan Documents, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day (unless such Business Day falls in another calendar month in which case such payment shall be made on the next preceding Business Day), and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c) Subject to Section 8.02, if, at any time prior to the Obligations being accelerated or otherwise becoming due and payable in full, insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, toward repayment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to pay such parties, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay principal toward costs and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the expenses (including Attorney Costs and amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cpayable under Article III) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared incurred by the Lenders ratably in accordance with the aggregate amount of principal of Administrative Agent and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationeach Lender.
(d) Unless the Paying Borrower or any Lender has notified the Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective Rate.Rate from time to time in effect; and
(eii) If if any Lender shall fail failed to make any payment required such payment, such Lender shall forthwith on demand pay to be the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by it pursuant the Administrative Agent to Section 2.05(bthe Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) or 2.15(d)at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy amount shall constitute such Lender’s obligations under Loan, included in the applicable Borrowing. If such Sections until all Lender does not pay such unsatisfied obligations are fully paidamount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified hereinAdministrative Agent may, and Borrower hereby authorizes Administrative Agent to, debit any deposit account of Borrower with Administrative Agent for all payments of principal, interest, fees and other amounts due under the Borrower Loan Documents as they become due, provided that Administrative Agent shall make each payment required first debit Borrower’s account no. 4159601087 with Administrative Agent, before debiting any other account.
(b) All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 at the applicable Administrative Agent’s Office in same day funds not later than noon, New York City Portland time, on the date when due and in immediately available fundsspecified herein. All payments received by the Administrative Agent after noon, without set-off or counterclaim. Any amounts received after such Portland time on any date may, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(c) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(bd) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied in the following order: (i) first, to pay toward costs and expenses incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(ce) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in same day funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in same day funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in same day funds, at the applicable Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in same day funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (e) shall be conclusive, absent manifest error.
(ef) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in this Article II, and the applicable conditions in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to Section 2.05(bsuch Lender, without interest.
(g) or 2.15(d)The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan.
(h) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (ai) Unless otherwise specified hereinExcept as provided below, all payments, including prepayments, of principal and interest on the Loans, of the Commitment Fee, the Borrower shall make each payment required Letter of Credit Fees and of all other amounts to be paid by the Borrower under the Loan Documents (the Commitment Fee and the Letter of Credit Fees, together with all of such other fees, being sometimes hereinafter collectively referred to as the "FEES") shall be made by it hereunder (including under Section 2.13to the Administrative Agent, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, 1:00 p.m. on the date when due such payment is due, for the account of the applicable Credit Parties at the Payment Office, in Dollars and in immediately available funds, without set-off off, offset, recoupment or counterclaim. Any amounts received after The failure of the Borrower to make any such payment by such time shall not constitute a Default, provided that such payment is made on such due date, but any such payment made after 1:00 p.m. on such due date may, in the discretion of the Paying Agent, shall be deemed to have been received made on the next succeeding Business Day for purposes the purpose of calculating interest thereonon amounts outstanding on the Loans. All As between the Borrower and each Credit Party, any payment by the Borrower to the Administrative Agent for the account of such payments Credit Party shall be made deemed to be payment by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇Borrower to such Credit Party. Notwithstanding the foregoing, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that all payments pursuant to Sections 2.10(c)3.5, 2.133.6, 2.143.7, 2.17 and 9.03 11.4 shall be made paid directly to the Persons Credit Party entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder under the Loan Documents shall be due and payable on a day that which is not a Business Day, the due date for payment thereof (except as otherwise provided with respect to Interest Periods) shall be extended to the next succeeding Business Day, and, Day and (except with respect to payments in respect of the case of any payment accruing interest, Fees) interest thereon shall be payable for at the period of applicable rate specified herein during such extension, provided, however, that if such next Business Day would be after the Maturity Date, such payment shall instead be due on the immediately preceding Business Day.
(bii) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (iA) first, to pay towards payment of interest and fees then due hereunderunder the Loan Documents, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiB) second, to pay towards payment of principal and unreimbursed LC Disbursements then due hereunderunder the Loan Documents, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noonat the applicable Administrative Agent's Office in Dollars and in Same Day Funds not later than 2:00 p.m., New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each such Lender its ratable share of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 2:00 p.m., without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall in each case continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest toward the reasonable expenses incurred in connection with retaking, holding, preserving, processing, maintaining or preparing for sale, lease or other disposition of, any Collateral, including reasonable attorney's fees and fees legal expenses pertaining thereto, (ii) second toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (iii) third, toward repayment of interest, fees, indemnification amounts and other obligations and liabilities (other than repayment of principal, L/C Borrowings or amounts payable under Related Swap Contracts) then due hereunderhereunder or under any other Loan Documents, ratably among the parties entitled thereto in accordance with the amounts of interest interest, fees, indemnification amounts and fees such other obligations and liabilities then due to such parties, and (iiiv) secondfourth, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, hereunder (the "Principal Obligations") ratably among the parties entitled thereto in accordance with the amounts of principal (including by reason of the purchase of risk participations in Swing Line Loans) and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
; provided, however, that if the Loans outstanding hereunder shall have been declared or otherwise become immediately due and payable pursuant to Section 8.02, then amounts available for distribution under this clause (civ) If any Lender shall, by exercising any right of set-off arising from payments under the Guaranty or counterclaim or otherwise, obtain payment in respect of any principal of or interest the realization on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion Collateral pursuant to the Security Instruments shall be distributed ratably to (x) the repayment of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than Principal Obligations (to be applied ratably among the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably parties entitled thereto in accordance with the aggregate amount amounts of principal (including by reason of and accrued interest on their respective Loans and the purchase of risk participations in LC Disbursements; provided that Swing Line Loans) and L/C Borrowings then due to such parties) and (iy) if the payment of Swap Termination Values owing to any such participations are purchased and all Lender or any portion Affiliate of the payment giving rise thereto is recovered, such participations any Lender arising under Related Swap Contracts that shall be rescinded have been terminated and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph Administrative Agent shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount have received notice of such participationtermination and the Swap Termination Value thereof from the applicable Lender or Affiliate of a Lender.
(d) Unless the Paying Borrower or any Lender has notified the Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in Same Day Funds, at the applicable Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Revolving Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Credit Commitment or its obligation to fund its Pro Rata Term A Share of the Term Loan A, its Pro Rata Term B Share of the Term Loan B or its Pro Rata Term C Share of the Term Loan C or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent, except to the extent such funds do not constitute the funding of a risk participation under Article II, shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Revolving Loans, to fund their respective shares of the Term Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Revolving Loan, to fund its share of the Term Loans or to fund any participations in Letters of Credit and Swing Line Loans on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Revolving Loan, to fund its share of any Term Loan or to purchase its participations in Letters of Credit and Swing Line Loans.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City central time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Percentage Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date maycentral time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) If at any time insufficient funds are received by and available Subject to the Paying Agent definition of "Interest Period," if any payment to pay fully all amounts of principalbe made by the Borrower shall come due on a day other than a Business Day, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds payment shall be applied (i) first, to pay interest and fees then due hereunder, ratably among made on the parties entitled thereto in accordance with the amounts of interest and fees then due to such partiesnext following Business Day, and (ii) secondsuch extension of time shall be reflected in computing interest or fees, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among as the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiescase may be.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each Lender shall forthwith on demand repay to the Administrative Agent the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon (1) in respect of each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day first two Business Days from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect, and (2) in respect of each day after the first two days from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in immediately available funds, at the Base Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to (1) for the first two Business Days of any Compensation Period, the Federal Funds Rate from time to time in effect, and (2) for each other day of any Compensation Period, the interest rate applicable to the applicable Borrowing. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) If The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender shall fail to make any payment Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Arbitron Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York, in the discretion of the Paying AgentNew York time, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If no Default or Event of Default exists and if no order of application is otherwise specified in the Loan Documents, payments and prepayments of the Obligations shall be applied first to fees, second to accrued interest then due and payable on the Outstanding Amount of Loans and L/C Obligations, and then to the remaining Obligations in the order and manner as Borrower may direct (subject to Section 2.03(b) hereof).
(d) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts the Obligations then due, or if a Default or Event of principalDefault exists, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds any payment or prepayment shall be applied in the following order: (i) firstto the payment of enforcement expenses incurred by the Administrative Agent, including Attorney Costs; (ii) to pay interest the ratable payment of all other fees, expenses, and fees then due hereunder, ratably among indemnities for which the parties Administrative Agent or the Lenders are entitled thereto to payment but have not yet been paid or reimbursed in accordance with the amounts of interest and fees then due to such partiesLoan Documents (as used in this Section 2.10(d)(ii), and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If a "ratable payment" for any Lender shallor the Administrative Agent shall be, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any date of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater determination, that proportion of which the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recoveredtotal fees, expenses, and indemnities owed to such participations shall be rescinded Lender or the Administrative Agent bears to the total aggregate fees and indemnities owed to all Lenders and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date of determination); (iii) to the ratable payment of accrued and unpaid interest on the Outstanding Amount of Loans and the Outstanding Amount of Obligations under Lender Hedging Agreements (as used in accordance herewith and maythis Section 2.10(d)(iii), "ratable payment" means, for any Lender (or Lender Affiliate, in reliance upon such assumptionthe case of Lender Hedging Agreements), distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the any date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.determination,
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent's Office in Dollars and in immediately available funds, without set-off funds not later than 12:00 noon on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 12:00 noon shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay ----- toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, ----------- ------ toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C ----- Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective Rate.Rate from time to time in effect; and
(eii) If if any Lender shall fail failed to make any payment required such payment, such Lender shall forthwith on demand pay to be the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by it pursuant the Administrative Agent to Section 2.05(bthe Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") or 2.15(d)at a rate per annum equal to the Federal ------------------- Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan, as the Paying case may be, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent maymay make a demand therefor upon the Borrower, in its discretion (notwithstanding any contrary provision hereof)and the Borrower shall pay such amount to the Administrative Agent, apply any amounts thereafter received by the Paying Agent together with interest thereon for the account Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitments or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidhereunder.
Appears in 1 contract
Sources: Credit Agreement (Coinstar Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required to be made by it hereunder under the Loan Documents (including under Section 2.13whether of principal, 2.14, 2.17interest or fees, or otherwise) prior to no later than the time expressly required under the relevant Loan Document for such payment (or, if no such time is expressly required, before 12:00 noon, New York City time), on the date when due and due, in immediately available funds, without set-off off, counterclaim, withholding or counterclaimdeduction of any kind whatsoever. Any amounts amount received after such time on any date day may, in the discretion of the Paying AgentNFF’s sole discretion, be deemed to have been received on the next succeeding Business Day day for purposes of calculating interest thereon. All such payments shall be made payable to the Paying Agent at its offices at Nonprofit Finance Fund, c/o Community Reinvestment Fund USA, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: Loan and Agency Services GroupServicing, or at such other office place as NFF may designate by written notice to Borrower, in lawful money of the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionAmerica.
(b) If at any time NFF receives insufficient funds are received by and available to the Paying Agent from Borrower to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds received shall be applied (i) first, to pay interest costs and fees then expenses due to NFF hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements interest then due hereunder, ratably among the parties entitled thereto in accordance with the amounts (iii) third, to pay fees (other than fees due pursuant to clause (c) of principal and unreimbursed LC Disbursements this Section) then due hereunder, (iv) fourth, to such partiespay fees, if any, then due pursuant to clause (c) of this Section, and (v) fifth, to pay principal then due hereunder; provided that NFF may apply insufficient funds differently at its sole discretion.
(c) If any Lender shallIn addition, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of if any principal of or interest on any Loan or other amount payable by Borrower hereunder is ten (10) or more days past due, whether due at stated maturity, upon acceleration or otherwise, Borrower agrees to pay a late charge of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion five percent (5%) of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto which is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationpast due.
(d) Unless All payments under the Paying Agent Loan Documents shall have received notice from the Borrower prior to the time be made free and clear of, and without deduction for, any taxes, duties, charges assessments, fees or withholdings (collectively, “Taxes”) assessed, levied or charged by which any payment from the governmental agency or other taxing authority; provided, that if Borrower is due required by law to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make deduct any Taxes from any such payment, (i) the Paying Agent may assume sum payable shall be increased as necessary so that after making all required withholdings or deductions, NFF receives the sum it would have received had no such withholdings or deductions been made, (ii) Borrower has made shall make such payment on such date in accordance herewith deductions and may, in reliance upon such assumption, distribute (iii) Borrower shall pay the full amount deducted to the relevant Lenders the amount due. In such event, if the Borrower has not governmental authority or taxing authority in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender accordance with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rateapplicable Law.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Loan Agreement (TechSoup Global)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent's Office in Dollars and in immediately available funds, without set-off funds not later than 12:00 noon on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, 12:00 noon shall in the discretion of the Paying Agent, each case be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period", if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower The Borrowers shall be obligated to make each payment required to be made by it the Borrowers hereunder (including under Section 2.13whether of principal, 2.14interest, 2.17fees or reimbursement of LC Disbursements, or otherwise) to Lender at its offices in Boston, Massachusetts, prior to 12:00 noon3:00 p.m., New York City Boston, Massachusetts time, on the date when due and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, (except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(b) If at ). All payments shall be made in immediately available funds, in U.S. dollars without set-off or counterclaim. Any amounts received after such time on any time insufficient funds are date may, in the discretion of the Lender, be deemed to have been received by and available on the next succeeding Business Day for purposes of calculating interest thereon. Notwithstanding anything to the Paying Agent contrary set forth herein, subject to pay fully the conditions to the funding of Revolving Loans set forth herein, all payments of interest, fees and any other amounts due to be paid by the Borrowers hereunder shall be made through the automatic funding of Base Rate Revolving Loans in amounts equal to the amounts of principalsuch interest, unreimbursed LC Disbursements, interest and fees then or other amounts due to be paid by the Borrowers hereunder, and the Borrowers hereby irrevocably authorize and direct the Lender to take such funds actions as may be necessary to effectuate such automatic funding of Base Rate Revolving Loans, and, upon funding of any such Base Rate Revolving Loan, the Borrowers’ obligation to make such payment shall be applied discharged and replaced by the resulting Base Rate Revolving Loan. The Borrowers expressly acknowledge and agree that (i) firstthe Lender may, in its sole discretion, effectuate the automatic funding of a Revolving Loan pursuant to pay interest this subsection 2.6(a) even though at the time of, or after giving effect to, the funding of such Revolving Loans the Revolving Credit Exposure exceeds the lesser of (x) the Revolving Credit Commitment and fees then due hereunder, ratably among (y) the parties entitled thereto in accordance with the amounts of interest and fees then due to such partiesBorrowing Base, and (ii) secondif any one or more of the conditions to the funding of Revolving Loans cannot be satisfied and the Lender, in its sole discretion, refuses to pay principal and unreimbursed LC Disbursements then fund a Base Rate Revolving Loan in an amount sufficient to satisfy the amount of any interest, fees or other amounts due hereunder, ratably among the parties entitled thereto in accordance with Borrowers shall remain obligated to pay the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the full amount of such participationinterest, fees or other amounts as and when the same shall become due.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit and Security Agreement (Ufp Technologies Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City Dallas, Texas time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayDallas, in the discretion of the Paying AgentTexas time, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to . To the extent necessary so that the benefit of all any payments are received under any Subsidiary Guaranty, such payments shall be shared applied first, toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Lenders Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the aggregate amount amounts of principal of interest and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.fees
Appears in 1 contract
Sources: Credit Agreement (Elcor Corp)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent's Office in Dollars and in immediately available funds, without set-off funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period", if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) firstFIRST, to pay toward costs and expenses (including Attorney Costs and amounts payable under ARTICLE III) incurred by the Administrative Agent and each Lender, (ii) SECOND, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondTHIRD, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective Rate.Rate from time to time in effect; and
(eii) If if any Lender shall fail failed to make any payment required such payment, such Lender shall forthwith on demand pay to be the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by it pursuant the Administrative Agent to Section 2.05(bthe Borrower to the date such amount is recovered by the Administrative Agent (the "COMPENSATION PERIOD") or 2.15(d)at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the Paying applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent maymay make a demand therefor upon the Borrower, in its discretion (notwithstanding any contrary provision hereof)and the Borrower shall pay such amount to the Administrative Agent, apply any amounts thereafter received by the Paying Agent together with interest thereon for the account Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidhereunder.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder (including under Section 2.13shall be made to the applicable Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17at the Administrative Agent's Office of such Administrative Agent in Dollars or, in the case of payments regarding Canadian Loans or otherwise) prior to Canadian Letters of Credit, in Canadian Dollars, and, in all cases, in immediately available funds not later than 12:00 noon, New York City time, noon on the date when due and specified herein. Such Administrative Agent will promptly distribute to each applicable Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available funds, without set-off or counterclaimlike funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agents after such time on any date may, in the discretion of the Paying Agent, 12:00 noon shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Agent Administrative Agents to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, Acceptance Usage, interest and fees then due hereunder, such funds shall be applied (i) first, toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agents and each Lender that are subject to pay reimbursement by the Borrowers pursuant to the terms of the Loan Documents, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay principal toward repayment of principal, L/C Borrowings and unreimbursed LC Disbursements Acceptance Usage then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal principal, L/C Borrowings and unreimbursed LC Disbursements Acceptance Usage then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of Unless a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from is required to be made by it to such Administrative Agent hereunder, that such Borrower or Lender, as the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower case may be, will not make such payment, the Paying such Administrative Agent may assume that such Borrower or Lender, as the Borrower case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to such Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent applicable Lender shall forthwith on demand repay to such Administrative Agent the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by such Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agentsuch Administrative Agent in immediately available funds, at the Federal Funds Effective RateRate in the case of the Domestic Administrative Agent and the Interbank Reference Rate in the case of the Canadian Administrative Agent, from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to such Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by such Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate in the case of the Domestic Administrative Agent and the Interbank Reference Rate in the case of the Canadian Administrative Agent, from time to time in effect. If such Lender pays such amount to the applicable Administrative Agent, then such amount shall constitute such Lender's Committed Loan, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the applicable Administrative Agent's demand therefor, such Administrative Agent may make a demand therefor upon the applicable Borrower, and such Borrower shall pay such amount to such Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the applicable Administrative Agent or Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of any Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make an Administrative Agent funds for any payment required Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the applicable Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans and to fund participations in Letters of Credit and Swing Line Loans and to accept Acceptances are several and not joint. The failure of any Lender to make any Committed Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Committed Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(h) On each date when the payment of any principal, interest or fees are due under any Loan Document, the applicable Borrower agrees to maintain on deposit in an ordinary checking account maintained by such Borrower with the applicable Administrative Agent (as such account shall be designated by such Borrower in a written notice to such Administrative Agent from time to time, the "Borrower Account") an amount sufficient to pay such principal, interest or fees in full. Each Borrower hereby authorizes the applicable Administrative Agent (i) to deduct automatically all principal, interest or fees when due under any Loan Document from its Borrower Account, and (ii) if and to the extent any payment under any Loan Document is not made when due, to deduct automatically any such amount from any or all of the accounts of such Borrower maintained with such Administrative Agent. The Administrative Agent agrees to provide timely notice to the applicable Borrower of any automatic deduction made pursuant to this Section 2.05(b) or 2.15(d2.13(h), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City Dallas, Texas time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayDallas, in the discretion of the Paying AgentTexas time, shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled theretoaccrue. The Paying Borrower authorizes the Administrative Agent shall distribute any such payments received by it for to charge the account of any other Person the Borrower maintained with Bank of America (account number _____________) for each payment of principal, interest and fees as it becomes due hereunder.
(b) Subject to the appropriate recipient promptly following receipt thereof. If definition of "Interest Period," if any payment hereunder to be made by the Borrower shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward reasonable costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal of the Loans and unreimbursed LC Disbursements any L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal of the Loans and unreimbursed LC Disbursements any L/C Borrowings then due to such parties. To the extent that any payments are received under any Guaranty, any Security Agreement, such payments shall be applied first, toward reasonable costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iii) third, toward repayment of principal of the Loans and any L/C Borrowings then due hereunder and all other obligations guaranteed under such Guaranty or secured under such Security Agreement, ratably among the Guarantied Parties (as defined in such Guaranty) and the Secured Parties (as defined in such Security Agreement) in accordance with the amounts of principal of the Loans and any L/C Borrowings and such other obligations guaranteed under such Guaranty and secured under such Security Agreement then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Revolving Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Revolving Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Sources: Credit Agreement (NCH Corp)
Payments Generally. (a) Unless All payments by the Borrower of principal, interest, fees and other Obligations shall be made (i) with respect to the 2024 Refinancing Term B Loans and Swingline Loans, in Dollars, and (ii) with respect to the Revolving Credit Commitments and Letters of Credit, in the applicable Approved Currency in which such Obligations are denominated, without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise specified expressly provided herein, all payments by the Borrower hereunder shall make each payment required to be made by it hereunder (including under Section 2.13to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17at the applicable Administrative Agent’s Office and in immediately available funds not later than 2:00 p.m., or otherwise) prior to 12:00 noon, New York City timeLocal Time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender’s Applicable Lending Office. All payments received by the Administrative Agent after 2:00 p.m., without set-off or counterclaim. Any amounts received after such time on any date mayLocal Time, shall (in the sole discretion of the Paying Administrative Agent, ) be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue. Other than as specified herein, all payments under each Loan Document of calculating principal or interest thereon. All such payments in respect of any Loan (or of any breakage indemnity in respect of any Loan) shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionDollars.
(b) If at any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time insufficient funds are received by and available shall be reflected in computing interest or fees, as the case may be; provided that, if such extension would cause payment of interest on or principal of Term Benchmark Loans to be made in the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereundernext succeeding calendar month, such funds payment shall be applied (i) first, to pay interest and fees then due hereunder, ratably among made on the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiesimmediately preceding Business Day.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith with Section 2.02 and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then
(i) if the Borrower failed to make such payment, then each of the relevant applicable Lenders severally agrees agree to repay pay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender Lenders in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lenders to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds (x) in the case of Revolving Credit Loans, at the Overnight Rate and (y) in the case of Term Loans, at the Federal Funds Effective Rate, in each case, plus, to the extent reasonably requested in writing by the Administrative Agent, any administrative, processing or similar fees to the extent customarily charged by such Administrative Agent to generally similarly situated borrowers (but not necessarily all such borrowers) in connection with the foregoing; it being understood that nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) (x) in the case of Revolving Credit Loans, at the Overnight Rate and (y) in the case of Term Loans, at the Federal Funds Rate, in each case, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing plus, to the extent reasonably requested in writing by the Administrative Agent, any administrative, processing or similar fees to the extent customarily charged by such Administrative Agent to generally similarly situated borrowers (but not necessarily all such borrowers) in connection with the foregoing. When such Lender makes payment to the Administrative Agent (together with all accrued interest thereon), then such payment amount (excluding the amount of any interest which may have accrued and been paid in respect of such late payment) shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at the interest rate applicable to such Loan. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this Section 2.12(c) shall be conclusive, absent demonstrable error.
(d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such ▇▇▇▇▇▇ as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) If The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make its payment under Section 9.07 are several and not joint. The failure of any Lender shall fail to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation or to make its payment required under Section 9.07.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(g) Whenever any payment received by the Administrative Agent under this Agreement or any of the other Loan Documents is insufficient to pay in full all amounts due and payable to the Administrative Agent and the Lenders under or in respect of this Agreement and the other Loan Documents on any date, such payment shall be distributed by the Administrative Agent and applied by the Administrative Agent and the Lenders in the order of priority set forth in Section 8.04. If the Administrative Agent receives funds for application to the Loan Obligations of the Loan Parties under or in respect of the Loan Documents under circumstances for which the Loan Documents do not specify the manner in which such funds are to be made by it pursuant to Section 2.05(b) or 2.15(d)applied, then the Paying Administrative Agent may, but shall not be obligated to, elect to distribute such funds to each of the Lenders in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy accordance with such Lender’s obligations under Applicable Percentage of the sum of (a) the Outstanding Amount of all Loans outstanding at such Sections until time and (b) the Outstanding Amount of all L/C Obligations outstanding at such unsatisfied obligations are fully paidtime, in repayment or prepayment of such of the outstanding Loans or other Loan Obligations then owing to such Lender.
Appears in 1 contract
Sources: Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Payments Generally. PRO RATA TREATMENT; SHARING OF SET-OFFS.
(a) Unless otherwise specified herein, the Borrower The Borrowers shall make each payment required to be made by it each of them hereunder (including whether of principal, interest, fees or reimbursement of LC Disbursements, or under Section 2.132.8, 2.14, 2.172.15 or 2.16, or otherwise) prior to 12:00 noon, New York City Boston, Massachusetts time, on the date when due and due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Administrative Agent at such of its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇in Boston, 10th FloorMassachusetts as shall be notified to the relevant parties from time to time, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan except payments to be made directly to the Issuing Lender as expressly provided herein and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.132.8, 2.14, 2.17 2.15, 2.16 and 9.03 10.3 shall be made directly to the Persons entitled thereto. The Paying Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof, and the Borrowers shall have no liability in the event timely or correct distribution of such payments is not so made. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunderhereunder under any circumstances, including, without limitation during, or as a result of the exercise by the Administrative Agent or the Lenders of remedies under the Collateral Documents and applicable law, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shallExcept to the extent otherwise provided herein: (i) each borrowing of Loans of a particular Class from the Lenders under Section 2.1 shall be made from the relevant Lenders, by exercising any right each payment of set-off or counterclaim or otherwise, obtain payment commitment fee under Section 2.11 in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment Commitments of a greater proportion particular Class shall be made for the account of the aggregate relevant Lenders, and each termination or reduction of the amount of its the Commitments of a particular Class under Section 2.3 shall be applied to the respective Commitments of such Class of the relevant Lenders, pro rata according to the amounts of their respective Commitments of such Class; (ii) LIBOR Loans and participations in LC Disbursements and accrued interest thereon than of any Class having the proportion received by any other Lender, then same Interest Period shall be allocated pro rata among the Lender receiving relevant Lenders according to the amounts of their Commitments of such greater proportion shall purchase Class (for cash at face value) participations in the case of the making of Loans) or their respective Loans of such Class (in the case of conversions and participations in LC Disbursements continuations of other Lenders to the extent necessary so that the benefit of all such payments shall be shared Loans); (iii) each payment or prepayment by the Lenders ratably in accordance with the aggregate amount Borrowers of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations a particular Class shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date pro rata in accordance herewith and may, in reliance upon such assumption, distribute to with the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.respective unpaid principal
Appears in 1 contract
Sources: Credit Agreement (Sli Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrowers shall be made without condition or deduction for any counterclaim, defense (other than payment in full), recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent’s Office in Dollars and in immediately available funds, without set-off funds not later than 12:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, 12:00 p.m. shall in the discretion of the Paying Agent, each case be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrowers shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from Borrowers or any Lender has notified the Borrower Administrative Agent, prior to the time by which any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower Borrowers or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower Borrowers or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) with respect to any payment that the Administrative Agent makes for the account of the Lenders or any L/C Issuer hereunder as to which the amount due. In Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such event, if payment referred to as the Borrower has “Rescindable Amount”): (1) the Borrowers have not in fact made such payment, ; (2) the Administrative Agent has made a payment in excess of the amount so paid by the Borrowers (whether or not then owed); or (3) the Administrative Agent has for any reason otherwise erroneously made such payment; then each of the relevant Lenders or the L/C Issuers, as the case may be, severally agrees to repay to the Paying Administrative Agent forthwith on demand the amount Rescindable Amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Administrative Agent, at the greater of the Federal Funds Effective RateRate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrowers to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrowers, and the Borrowers shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrowers with respect to any amount owing under this Section 2.12(d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrowers by the Paying Administrative Agent because the conditions to the applicable Borrowing set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy so make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
(h) Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents, if at any time following the occurrence and during the continuation of an Event of Default, but prior to the exercise of remedies as provided for in Section 9.02, payment is made by the Borrowers and is applied to payment of principal or interest on the Loans, such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidpayment shall be applied ratably to the unpaid principal or interest, as the case may be, of the Loans (and breakage, termination or other payments and any interest accrued thereon).
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified hereinSubject to Section 2.09(a), the Borrower shall make each payment required to be made by it hereunder (including or under Section 2.13, 2.14, 2.17, any other Loan Document on or otherwise) prior to 12:00 noonthe time expressly required hereunder or under such other Loan Document for such payment (or, if no such time is expressly required, on or prior to 2:00 p.m., New York City time), on the date when due and due, in immediately available fundsfunds (to the extent required hereby), without set-off any defense, setoff, recoupment or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to such account as may be specified by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Administrative Agent, except ; provided that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 2.13 and 9.03 10.03 shall be made directly to the Persons entitled theretothereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Paying Administrative Agent shall distribute to the Lenders any such payments payment received by it for the account of any other Person to the appropriate recipient Lenders promptly following receipt thereof. If any payment hereunder or under any other Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments under each Loan Document shall be made in Dollars.
(b) If at any time insufficient funds are received by (and are available to to) the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursementsinterest, interest and premiums and/or fees then due hereunder, such funds shall be applied (i) first, to pay interest toward payment of interest, premiums and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest interest, premiums and fees then due to such parties, and (ii) second, to pay toward payment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d10.03(c), then the Paying Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections Section until all such unsatisfied obligations are fully paid.
(d) Unless the Borrower or any Lender has notified the Administrative Agent, prior to the date any payment is required to be made by it to the Administrative Agent hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Administrative Agent may assume that the Borrower or such Lender, as the case may be, have timely made such payment and may (but shall not be so required to), in reliance thereon, make available a corresponding amount to the Person entitled thereto. If and to the extent that such payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then the applicable Lender agrees to pay to the Administrative Agent forthwith on demand the portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is repaid to the Administrative Agent in
Appears in 1 contract
Sources: Credit Agreement (Sunnova Energy International Inc.)
Payments Generally. (a) Unless otherwise specified herein, the The Borrower shall make each payment required to be made by it hereunder (including whether of principal, interest or fees, or under Section 2.132.09, 2.14, 2.172.10 or 2.11, or otherwise) prior to 12:00 noon, New York City time, noon (Eastern Standard Time) on the date when due due, in Dollars and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying AgentLender, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent Lender at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereofspecified herein. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, Day and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(b) If at any time insufficient funds are received by and available to the Paying Agent Lender to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the then to pay fees and other amounts of interest and fees (other than principal) hereunder, then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If The Borrower agrees that at any Lender shalltime after the occurrence and during the continuance of an Event of Default, by exercising in addition to (and without limitation of) any right of set-off off, banker’s lien, or counterclaim and other rights and remedies the Lender may otherwise have, the Lender shall be entitled, at its option, to offset deposits held by it or otherwiseany of its Affiliates (whether general or special, obtain payment time or demand, provisional or final, in respect whatever currency, whether or not then due) other than those deposits which are specifically pledged to secure separate obligations of the Borrower, for the account of, and other indebtedness owing by it or any of its Affiliates to, the Borrower at any of its offices, in Dollars or in any other currency, against any principal of or interest on any of its Loans the Advances, or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor obligation of the Borrower in the amount hereunder, which is not paid when due (regardless of whether such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is balances are then due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and mayBorrower), in reliance upon which case it shall promptly notify the Borrower; provided, that failure to give such assumption, distribute to notice shall not affect the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Ratevalidity thereof.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Borrower, the Alternative Rate Lender or any Lender has notified the Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Alternative Rate Lender or Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Alternative Rate Lender or Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower or Alternative Rate Lender failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect for three (3) Business Days and thereafter at a rate per annum equal to the Default Rate. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Committed Loan or Bid Loan, as the case may be, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans are several and not joint. The failure of any Lender to make any Committed Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Committed Loan.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Sources: Credit Agreement (Stryker Corp)
Payments Generally. (a) Unless otherwise specified hereinAll payments of the principal, Prepayment Price, Redemption Price and Purchase Price of, and interest on, the Borrower Series 2020 A Bonds shall make each payment required be made by the Authority at the times, in the manner and on the terms and conditions set forth in the General Bond Resolution, the Series 2020 Resolution (including the Certificate of Determination) and the Series 2020 A Bonds. All payments to be made by it hereunder or on behalf of the Authority to the Purchaser under the other Related Documents and this Agreement shall be fully earned when due and nonrefundable when paid and made in lawful currency of the United States of America and in immediately available funds. All Required Payments payable to the Purchaser hereunder, unless otherwise directed by the Purchaser in writing, shall be paid by wire transfer to the Purchaser’s account at (including under Section 2.13, 2.14, 2.17, or otherwiseto such other account of the Purchaser as the Purchaser may specify by written notice to the Authority or the Trustee) prior to 12:00 noonnot later than 3:30 p.m. New York, New York City time, on the date when due and in immediately available funds, without set-off or counterclaimpayment is due. Any amounts payment received by the Purchaser after such time on any date may3:30 p.m., in the discretion of the Paying AgentNew York, New York time, shall be deemed to have been received by the Purchaser on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereofDay. If any payment hereunder shall be is due on a day that is not a Business Day, the date for then such payment shall be extended to due on the next succeeding Business Day, and, in the case of any the computation of the interest or fees hereunder, such extension of time shall, in such case, be included in the computation of the payment accruing interest, interest thereon shall be payable for the period of such extensiondue hereunder.
(b) If at any time insufficient funds are received by and available to the Paying Agent Purchaser to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due under the Series 2020 A Bonds or hereunder, such funds shall be applied (i) first, to pay interest payment of that portion of the Required Payments constituting fees, indemnities, expenses and fees then due hereunderother amounts (including fees, ratably among charges and disbursements of counsel to the parties entitled thereto in accordance with Purchaser and amounts payable under Section 2.06) payable to the amounts of interest and fees then due to such partiesPurchaser, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recoveredRequired Payments constituting accrued and unpaid interest on the Series 2020 A Bonds or other amount unpaid hereunder (and, in any such participations shall be rescinded case, first to past due interest and the purchase price restored second to the extent of such recovery, without current interest), and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesthird, to the extent it may effectively do so under applicable law, payment of that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor portion of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account Required Payments constituting unpaid principal of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective RateSeries 2020 A Bonds.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Bondholder Agreement
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent’s Office in Dollars and in immediately available funds, without set-off funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period”, if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan or purchase its participation.
(g) Subject to Section 2.05(b) or 2.15(d3.01(e), then the Paying Agent may, in its discretion (notwithstanding nothing herein shall be deemed to obligate any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidobtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense (other than payment in full), recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent’s Office in Dollars and in immediately available funds, without set-off funds not later than 12:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, 12:00 p.m. shall in the discretion of the Paying Agent, each case be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereonin immediately available funds, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.then:
Appears in 1 contract
Sources: Term Loan Credit Agreement (Ardent Health Partners, LLC)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, at the Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available funds, without set-off or counterclaimlike funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period”, if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in Same Day Funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. The Administrative Agent is authorized to deduct all principal, interest and all other fees and expenses due from any of the Borrower’s checking accounts maintained with the Administrative Agent. If such payments are not taken from the Borrower’s checking accounts, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon, New York City Seattle time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m., without set-off or counterclaim. Any amounts received after such time on any date maySeattle time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Section 3) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Committed Loan, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Section 2, and the conditions to the applicable Credit Extension set forth in Section 2.05(b4 are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Committed Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Committed Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Sources: Credit Agreement (Flir Systems Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Foreign Currency Loans, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, at the Administrative Agent's Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date when due specified herein. Except as otherwise expressly provided herein, all payments by the Loan Parties hereunder with respect to principal and interest on Foreign Currency Loans shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent's Office in such Permitted Foreign Currency and in immediately available funds, without set-off Same Day Funds not later than the Applicable Time specified by the Administrative Agent on the dates specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent (i) after such time on any date may, 2:00 p.m. in the discretion case of payments in Dollars, or (ii) after the Paying AgentApplicable Time specified by the Administrative Agent in the case of payments in a Permitted Foreign Currency, shall in each case be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) If at any time insufficient funds are received payment to be made by and available to the Paying Agent to pay fully all amounts of principalBorrower shall come due on a day other than a Business Day, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds payment shall be applied (i) first, to pay interest and fees then due hereunder, ratably among made on the parties entitled thereto in accordance with the amounts of interest and fees then due to such partiesnext following Business Day, and (ii) secondsuch extension of time shall be reflected in computing interest or fees, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among as the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiescase may be.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in Same Day Funds, at the Federal Funds Effective Rateapplicable Overnight Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the applicable Overnight Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) If The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender shall fail to make any payment Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or set-off. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in U.S. Dollars (including under Section 2.13or, 2.14in the case of principal and interest on any Loan denominated in another currency, 2.17, or otherwisein such other currency) prior to and in Same Day Funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available funds, without set-off or counterclaimlike funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 12:00 noon shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. accrue.
(b) If any payment hereunder to be made by a Borrower shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andDay (unless, in the case of any a payment accruing interestof interest on a Eurocurrency Rate Loan, interest thereon such next following Business Day is the first Business Day of a calendar month, in which case such payment shall be payable for made on the period immediately preceding Business Day), and any such extension of such extensiontime shall be reflected in computing interest or fees, as the case may be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender to pay the extent required to be reimbursed hereunder, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If Unless any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for hereunder, that such Borrower or such Lender, as the account of the relevant Lenders hereunder that the Borrower case may be, will not make such payment, the Paying Administrative Agent may assume that such Borrower or such Lender, as the Borrower case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i) if such Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount was made available by the Administrative Agent to such Lender to the date such amount is distributed to it to but excluding the date of payment repaid to the Paying AgentAdministrative Agent in Same Day Funds, at the Federal Funds Effective RateOvernight Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the applicable Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Overnight Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Committed Loan or Borrowing Subsidiary Loan, as the case may be, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon such Borrower, and such Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or any Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error. Upon any Lender failing to make such payment required to be made by such Lender under this Agreement, the Company may remove or replace such Lender in accordance with Section 9.12.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall promptly return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans and to fund participations in Swing Line Loans, Letters of Credit, Borrowing Subsidiary Loans and Canadian Banker’s Acceptances are several and not joint. The failure of any Lender to make any Committed Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Committed Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Sources: Credit Agreement (Pentair Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein and except with respect to principal of and interest on Foreign Currency Loans, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, at the Administrative Agent's Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date when due specified herein. Except as otherwise expressly provided herein, all payments by the Loan Parties hereunder with respect to principal and interest on Foreign Currency Loans shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the applicable Administrative Agent's Office in such Permitted Foreign Currency and in immediately available funds, without set-off Same Day Funds not later than the Applicable Time specified by the Administrative Agent on the dates specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent (i) after such time on any date may, 2:00 p.m. in the discretion case of payments in Dollars, or (ii) after the Paying AgentApplicable Time specified by the Administrative Agent in the case of payments in a Permitted Foreign Currency, shall in each case be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) If at any time insufficient funds are received payment to be made by and available to the Paying Agent to pay fully all amounts of principalBorrower shall come due on a day other than a Business Day, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds payment shall be applied (i) first, to pay interest and fees then due hereunder, ratably among made on the parties entitled thereto in accordance with the amounts of interest and fees then due to such partiesnext following Business Day, and (ii) secondsuch extension of time shall be reflected in computing interest or fees, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among as the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiescase may be.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in Same Day Funds, at the Federal Funds Effective Rateapplicable Overnight Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the applicable Overnight Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) If The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender shall fail to make any Loan, to fund any such participation or to make any payment under Sections 11.04(b) and 11.05(b) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent responsible for the account failure of such any other Lender to satisfy such Lender’s obligations so make its Loan, to purchase its participation or to make its payment under such Sections until all such unsatisfied obligations are fully paid11.04(b) and 11.05(b).
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City San Francisco time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date maySan Francisco time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) If Subject to the definition of "Interest Period," if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c) Except as provided in Section 9.11, if at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses then owed under Section 10.04 and amounts payable under Article III, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing, but in no event to exceed the Maximum Rate. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(iii) If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article II, and the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(e) If The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender shall fail to make any payment Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified hereinAll payments to be made in respect of principal, interest, fees or other amounts due from the Borrower Borrowers under this Agreement or under the Notes are payable at 3:00 p.m. E.S.T. on the day when due, without presentment, demand, protest or notice of any kind, all of which are expressly waived, and an action for the payments will accrue immediately. All such payments must be made to the Lender at its Office in U.S. Dollars and in funds immediately available at such Office, without setoff, counterclaim or other deduction of any nature. After maturity of any part of the Loans (by demand, at maturity, by acceleration or otherwise), interest on such part of the Loans will be due and payable on demand. All such payments shall make each be applied at the option of the Lender to accrued and unpaid interest, outstanding principal and other sums due under this Agreement in such order as the Lender, in its sole discretion, shall elect.
(b) Any payment required to be made by it hereunder the Borrowers to the Lender under this Agreement or any other Loan Document may, at the Lender’s option, be deducted when due from any deposit or other account (general or special, time or demand, provisional or final) of a Borrower with the Lender. With respect to any commitment or other fee, or any other cost or expense (including under Section 2.13attorneys’ fees), 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, on the date when due and payable to the Lender under the Loan Documents, each of the Borrowers hereby irrevocably authorizes the Lender to debit any of its deposit accounts with the Lender in immediately available fundsan amount such that the aggregate amount debited from all such deposit accounts does not exceed such fee or other cost or expense. If there are insufficient funds in such deposit accounts to cover the amount of the fee or other cost or expense then due, without set-off such debits will be reversed (in whole or counterclaim. Any amounts received after such time on any date mayin part, in the discretion of the Paying Agent, Lender’s sole discretion) and such amount not debited shall be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereonbe unpaid. All No such payments debit under this Section 3.11 shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on deemed a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(b) If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiesset-off.
(c) If the Borrowers fail to pay any Lender shallinstallment of principal, by exercising any right interest or other amount under this Agreement within ten (10) days of set-off or counterclaim or otherwisewhen due, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving addition to making payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than installment then due, the proportion received by any other Lender, then Borrowers shall pay to the Lender receiving such greater proportion shall purchase a late charge in an amount equal to five percent (for cash at face value5.0%) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationoverdue installment.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which any payment from the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower will not make such payment, the Paying Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders the amount due. In such event, if the Borrower has not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Agent, at the Federal Funds Effective Rate.
(e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Ultralife Corp)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay (subject to its recoupment rights from and remedies against such defaulting Lender of any breakage costs paid by the Borrower when repaying such amount) such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender to make any Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrowers shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrowers hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent's Office in Dollars and in immediately available funds, without set-off funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period", if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrowers shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall Borrowers or any Lender have received notice from notified the Borrower Administrative Agent, prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower Borrowers or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower has Borrowers or such Lender, as the case may be, have timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrowers failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrowers to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Parent (on behalf of the Borrowers), and the Borrowers shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrowers may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Parent (on behalf of the Borrowers) with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrowers by the Paying Administrative Agent because the conditions to the applicable Borrowing set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 at the Administrative Agent’s Office in immediately available funds not later than noon, New York City Portland time, on the date when due and specified herein. If, for any reason, the Borrower is prohibited by any Law from making any required payment hereunder in immediately available fundsan Alternative Currency, without set-off it shall make such payment in U.S. Dollars in the U.S. Dollar Equivalent of the Alternative Currency payment amount. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent (i) after such time on any date maynoon, Portland time, in the discretion case of payments in U.S. Dollars, or (ii) after the Paying AgentApplicable Time specified by the Administrative Agent in the case of payments in an Alternative Currency, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, hereunder such funds shall be applied in the following order: (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the applicable Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Committed Loan included in the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Committed Loans and to fund participations in Letters of Credit and Swing Line Loans are several and not joint. The failure of any Lender to make any Committed Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Committed Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent's Office in Dollars and in immediately available funds, without set-off funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender's Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period", if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (c) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit and Swingline Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made in Dollars without condition or deduction for any counterclaim, defense, recoupment or set-off. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in immediately available funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (including under Section 2.13, 2.14, 2.17, or otherwiseother applicable share as provided herein) prior of such payment in like funds as received by wire transfer to 12:00 noonsuch Lender’s Lending Office. All payments received by the Administrative Agent after 2:00 p.m., New York City time, on the date when due and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest the Administrative Agent’s fees and fees reimbursable expenses (including Attorney Costs and amounts payable under Article III) then due hereunder, ratably among and payable pursuant to any of the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and Loan Documents; (ii) second, to pay all reimbursable expenses of the Lenders then due and payable pursuant to any of the Loan Documents, pro rata to the Lenders based on their respective pro rata shares of such fees and expenses; (iii) third, to interest and fees then due and payable hereunder, pro rata to the Lenders based on their respective pro rata shares of such interest and fees; and (iv) fourth, to the payment of principal and unreimbursed LC Disbursements of the Loans then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower Borrower, or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the greater of the Federal Funds Effective RateRate or a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at the greater of the Federal Funds Rate at time to time in effect or a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation, until the second Business Day after such demand and thereafter at the greater of the Base Rate or a rate determined by the Administrative Agent. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan, included in the applicable Borrowing. If such Lender does not pay such amount within two Business Days after the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Revolving Loans are several and not joint. The failure of any Lender to make any Revolving Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Revolving Loan or purchase its participation.
(g) Subject to Section 2.05(b) or 2.15(d)3.09, then the Paying Agent may, in its discretion (notwithstanding nothing herein shall be deemed to obligate any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidobtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Sources: 364 Day Revolving Credit Agreement (Harris Corp /De/)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, at the Administrative Agent’s Office in Dollars and in Same Day Funds not later than 2:00 p.m. on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available funds, without set-off or counterclaimlike funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period”, if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in Same Day Funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Term Loan Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan or to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Navigant International Inc)
Payments Generally. (a) Unless otherwise specified herein, Each payment (including prepayments) by Borrower of the Borrower principal of or interest on the Loans and any other amount owed under this Agreement or any other Loan Document shall make each payment required to be made by it hereunder (including under Section 2.13, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, not later than 2:00 p.m. on the date when due and specified for payment under this Agreement to Administrative Agent at Administrative Agent’s Office, in Dollars constituting immediately available funds, without set-off . Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Principal Office. Any amounts All payments received by Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. accrue.
(b) If any payment hereunder under this Agreement or any other Loan Document shall be due on specified to be made upon a day that which is not a Business Day, the date for payment it shall be extended to made on the next succeeding day which is a Business Day. Any extension of time shall in such case be included in computing interest and fees, andif any, in the case of any payment accruing interest, interest thereon shall be payable for the period of connection with such extension.
(b) If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such partiespayment.
(c) If any Lender shallBorrower agrees to pay principal, by exercising any right of interest, fees and all other amounts due under the Loan Documents without deduction for set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationdeduction whatsoever.
(d) Unless the Paying If some but less than all amounts due from Borrower are received by Administrative Agent, Administrative Agent shall have received notice from apply such amounts in the following order of priority: (i) to the payment of Administrative Agent’s expenses incurred on behalf of Lenders or L/C Issuer under the Loan Documents then due and payable, if any; (ii) to the payment of all other fees under the Loan Documents then due and payable; (iii) to the payment of interest then due and payable on the Loans (applied as provided in Section 9.3); (iv) to the payment of all other amounts not otherwise referred to in this Section 2.10(d) then due and payable under the Loan Documents; and (v) to the payment of principal then due and payable on the Loan (applied as provided in Section 9.3).
(e) Unless Borrower or any Lender has notified Administrative Agent, prior to the time by which date any payment from is required to be made by it to Administrative Agent hereunder, that Borrower or such Lender, as the Borrower is due to the Paying Agent for the account of the relevant Lenders hereunder that the Borrower case may be, will not make such payment, the Paying Administrative Agent may assume that Borrower or such Lender, as the Borrower case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to Administrative Agent in immediately available funds, then:
(i) if Borrower failed to make such payment, then each of the relevant Lenders severally agrees to repay to the Paying Agent Lender shall forthwith on demand repay to Administrative Agent the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by Administrative Agent to Borrower to the date such amount is recovered by Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender does not pay such amount forthwith upon Administrative Agent’s demand therefor, Administrative Agent may make a demand therefor upon Borrower, and Borrower shall pay such amount to Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the interest rate then applicable to Loans as provided in Section 2.7 or 2.9 Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which Administrative Agent, L/C Issuer Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of Administrative Agent to any Lender or Borrower with respect to any amount owing under this Section 2.10(e) shall be conclusive, absent manifest error.
(ef) If any Lender makes available to Administrative Agent funds for its Pro Rata Share of a Revolving Loan or a Term Loan and such funds are not made available to Borrower by Administrative Agent because the conditions set forth in Article V are not satisfied or waived in accordance with the terms hereof, Administrative Agent shall fail return such funds (in like funds as received from such Lender) to such Lender, without interest.
(g) The obligation of a Lender hereunder to make its Pro Rata Share of each Revolving Loan and Term Loan are several and not joint. The failure of any payment required Lender to fund its Pro Rata Share of any Revolving Loan or Term Loan shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidfund its Pro Rata Share of any Revolving Loan or Term Loan .
Appears in 1 contract
Sources: Credit Agreement (Affirmative Insurance Holdings Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day (unless such Business Day falls in another calendar month in which case such payment shall be made on the next preceding Business Day), and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c) Subject to Section 8.02, if, at any time prior to the Obligations being accelerated or otherwise becoming due and payable in full, insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, toward repayment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to pay such parties, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay principal toward costs and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the expenses (including Attorney Costs and amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cpayable under Article III) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared incurred by the Lenders ratably in accordance with the aggregate amount of principal of Administrative Agent and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationeach Lender.
(d) Unless the Paying Borrower or any Lender has notified the Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to the Borrower or any Lender with respect to any amount owing under this Section 2.11(d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender to make any Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, each of the Borrower and the Parent shall make each payment required to be made by it hereunder (including under Section 2.13, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, 2:00 p.m. on the date when due and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, Administrative Agent’s Account or at such other office in the United States of America as directed by Paying the Administrative Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(b) If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC LOC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC LOC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC the applicable LOC Disbursements; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower Loan Parties pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC LOC Disbursements to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower Each of the Loan Parties consents to the foregoing and agrees, to the extent it may effectively do so under applicable lawLaw, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Loan Parties rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Loan Parties in the amount of such participation.
(dc) Unless the Paying Administrative Agent shall have received notice from the Borrower Loan Parties prior to the time by at which any payment from the Borrower Loan Parties is due to the Paying Administrative Agent for the account of the relevant applicable Lenders hereunder that the Borrower Loan Parties will not make An [*] represents confidential information that has been omitted and filed separately with the Securities and Exchange Commission. such payment, the Paying Administrative Agent may assume that the Borrower has Loan Parties have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant applicable Lenders the amount due. In such event, if the Borrower has Loan Parties have not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Administrative Agent, at the Federal Funds Effective Rate.
(ed) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d2.06(c), then the Paying Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections Section until all such unsatisfied obligations are fully paid.
(e) If any fee due and payable by the Borrower, the Parent and LNC pursuant to Section 2.03 or any other Loan Document is not paid on or prior to the Business Day following the date on which it is first due, whether at stated maturity, by acceleration or otherwise, then, upon the request of the Required Lenders, such amount shall thereafter bear interest at a rate per annum at all times equal to the Drawn Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due fees) shall be due and payable upon demand.
(f) Except as otherwise provided herein, all interest payable hereunder shall be computed on the basis of (i) if based on the Federal Funds Rate or the Cost of Funds Rate, a year of 360 days and the actual number of days elapsed and (ii) if based on the Prime Rate, a year of 365/366 days and the actual number of days elapsed.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, each of the Borrower and the Parent shall make each payment required to be made by it hereunder (including under Section 2.13, 2.14, 2.17, or otherwise) prior to 12:00 noon, New York City time, 2:00 p.m. on the date when due and in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Paying Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, Administrative Agent’s Account or at such other office in the United States of America as directed by Paying the Administrative Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(b) If at any time insufficient funds are received by and available to the Paying Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, to pay principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC LOC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC LOC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC the applicable LOC Disbursements; provided provided, that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower Loan Parties pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC LOC Disbursements to any assignee or An [*] represents confidential information that has been omitted and filed separately with the Securities and Exchange Commission. participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower Each of the Loan Parties consents to the foregoing and agrees, to the extent it may effectively do so under applicable lawLaw, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower Loan Parties rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower Loan Parties in the amount of such participation.
(dc) Unless the Paying Administrative Agent shall have received notice from the Borrower Loan Parties prior to the time by at which any payment from the Borrower Loan Parties is due to the Paying Administrative Agent for the account of the relevant applicable Lenders hereunder that the Borrower Loan Parties will not make such payment, the Paying Administrative Agent may assume that the Borrower has Loan Parties have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant applicable Lenders the amount due. In such event, if the Borrower has Loan Parties have not in fact made such payment, then each of the relevant Lenders severally agrees to repay to the Paying Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Paying Administrative Agent, at the Federal Funds Effective Rate.
(ed) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.05(b) or 2.15(d2.06(c), then the Paying Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections Section until all such unsatisfied obligations are fully paid.
(e) If any fee due and payable by the Borrower, the Parent and LNC pursuant to Section 2.03 or any other Loan Document is not paid on or prior to the Business Day following the date on which it is first due, whether at stated maturity, by acceleration or otherwise, then, upon the request of the Required Lenders, such amount shall thereafter bear interest at a rate per annum at all times equal to the Drawn Rate to the fullest extent permitted by applicable Laws. Accrued and unpaid interest on past due amounts (including interest on past due fees) shall be due and payable upon demand.
(f) Except as otherwise provided herein, all interest payable hereunder shall be computed on the basis of (i) if based on the Federal Funds Rate or the Cost of Funds Rate, a year of 360 days and the actual number of days elapsed and (ii) if based on the Prime Rate, a year of 365/366 days and the actual number of days elapsed.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent’s Office in Dollars and in immediately available fundsfunds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender (i) with respect to such payments on the Revolving Obligations, without set-off its Revolving Commitment Percentage thereof, (ii) with respect to such payments on the Term Loan, its Term Loan Commitment Percentage thereof or counterclaim. Any amounts received after (iii) such time on any date mayother applicable share as provided herein, in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the discretion of Administrative Agent (i) with respect to payments in Dollars, after 2:00 p.m. and (ii) with respect to payments in Alternative Currencies, after the Paying Applicable Time specified by the Administrative Agent, shall in each case be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period,” if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and or are available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective Rate.Rate from time to time in effect; and
(eii) If (A) if any Lender shall fail failed to make any payment required such payment, such Lender shall forthwith on demand pay to be the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made by it pursuant to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received available by the Paying Administrative Agent for to the account of Borrower to the date such Lender amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidthe Federal Funds Rate from time to time in effect.
Appears in 1 contract
Sources: Credit Agreement (Aaf McQuay Inc)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the Administrative Agent's Office in Dollars and in immediately available funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall "Interest Period," if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under ARTICLE III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "COMPENSATION PERIOD") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this ARTICLE II, and the conditions to Section 2.05(bthe applicable Borrowing set forth in ARTICLE IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) or 2.15(d)to such Lender, then without interest.
(f) The obligations of the Paying Agent mayLenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or set-off. Except as otherwise expressly provided herein all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17at the applicable Administrative Agent's Office in Dollars and in Same Day Funds not later than 11:00 a.m., or otherwise) prior to 12:00 noon, New York City San Francisco time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 11:00 a.m., without set-off or counterclaim. Any amounts received after such San Francisco time on any date may, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereonor fee shall continue to accrue. All such payments in respect of any Interest Rate Swap shall be made as provided in the applicable Joinder Agreement and attachments thereto. Subject to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States definition of America as directed by Paying Agent, except that payments pursuant "Interest Period," if any payment to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to by the Persons entitled thereto. The Paying Agent Borrower shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extension.
(b) may be. If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to . Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then: if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in Same Day Funds, at the applicable Federal Funds Effective Rate.
Rate from time to time in effect; and if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (ethe "Compensation Period") at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan, included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor on the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error. If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bCredit Extensions set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest. The obligations of each Revolving Lender hereunder to make Loans and to fund participations in Letters of Credit applicable to it, the obligations of each Term Lender hereunder with respect to its Term Loans, and the obligations of each Swap Counterparty hereunder to make Interest Rate Swaps are several and not joint. The failure of any Lender to make any Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other applicable Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation. Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Sources: Credit Agreement (Solectron Corp)
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17at the Administrative Agent's Office in Dollars and in immediately available funds not later than 11:00 a.m., or otherwise) prior to 12:00 noon, New York City San Francisco time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or other applicable share as provided herein) of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 11:00 a.m., without set-off or counterclaim. Any amounts received after such time on any date maySan Francisco time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) Subject to the definition of "Interest Period" contained in Section 1.01, if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient the funds are received by and available to the Paying Administrative Agent are not sufficient to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in immediately available funds, at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights, which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and the conditions to Section 2.05(bthe applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans and to fund participations in Letters of Credit are several and not joint. The failure of any Lender to make any Loan or 2.15(d)to fund any such participation on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Paying Agent and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan or purchase its participation.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
Appears in 1 contract
Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to 12:00 noon, New York City time, on at the date when due Administrative Agent’s Office in Dollars and in immediately available funds, without set-off funds not later than 2:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share (or counterclaimother applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. Any amounts All payments received by the Administrative Agent after such time on any date may, in the discretion of the Paying Agent, 2:00 p.m. shall be deemed to have been received on the next succeeding Business Day for purposes and any applicable interest or fee shall continue to accrue.
(b) Subject to the definition of calculating interest thereon. All such payments shall “Interest Period”, if any payment to be made to by the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 Borrower shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be come due on a day that is not other than a Business Day, the date for payment shall be extended to made on the next succeeding following Business Day, andand such extension of time shall be reflected in computing interest or fees, in as the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionmay be.
(bc) If at any time insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC DisbursementsL/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and unreimbursed LC Disbursements L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agreesAdministrative Agent, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in immediately available funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in immediately available funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying Agent, Administrative Agent in immediately available funds at the Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in immediately available funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the “Compensation Period”) at a rate per annum equal to the Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent’s demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Revolving Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent manifest error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article V are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and Swing Line Loans and to make payments pursuant to Section 2.05(b10.07 are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make payments pursuant to Section 10.07 on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, purchase its participation or to make payments pursuant to Section 10.07.
(g) or 2.15(dSubject to Section 3.01(e), then the Paying Agent may, in its discretion (notwithstanding nothing herein shall be deemed to obligate any contrary provision hereof), apply any amounts thereafter received by the Paying Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidobtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
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Payments Generally. (a) Unless otherwise specified herein, the Borrower shall make each payment required All payments to be made by it the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder (including under Section 2.13shall be made to the Administrative Agent, 2.14for the account of the respective Lenders to which such payment is owed, 2.17, or otherwise) prior to at the applicable Administrative Agent's Office in Dollars and in Same Day Funds not later than 12:00 noon, New York City time, on the date when due and specified herein. The Administrative Agent will promptly distribute to each Lender its Pro Rata Share of such payment in immediately available fundslike funds as received by wire transfer to such Lender's Lending Office. All payments received by the Administrative Agent after 12:00 noon, without set-off or counterclaim. Any amounts received after such time on any date mayNew York time, in the discretion of the Paying Agent, shall be deemed to have been received on the next succeeding Business Day for purposes of calculating and any applicable interest thereon. All such payments or fee shall be made in each case continue to the Paying Agent at its offices at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, 10th Floor, Houston, Texas 77002, Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Loan and Agency Services Group, or at such other office in the United States of America as directed by Paying Agent, except that payments pursuant to Sections 2.10(c), 2.13, 2.14, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Paying Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extensionaccrue.
(b) Subject to the definition of "Interest Period," if any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected in computing interest or fees, as the case may be.
(c) If at any time prior to the occurrence of an Event of Default insufficient funds are received by and available to the Paying Administrative Agent to pay fully all amounts of principal, unreimbursed LC Disbursements, interest and fees then due hereunder, such funds shall be applied (i) first, to pay toward costs and expenses (including Attorney Costs and amounts payable under Article III) incurred by the Administrative Agent and each Lender, (ii) second, toward repayment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iiiii) secondthird, to pay toward repayment of principal and unreimbursed LC Disbursements then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties. If at any time after the occurrence of an Event of Default insufficient funds are received by and unreimbursed LC Disbursements available to the Administrative Agent to pay fully all Outstanding Amounts hereunder and Outstanding Amounts (as defined in the Multi-Year Revolving Credit Agreement) under the Multi-Year Revolving Credit Agreement, such funds shall be applied (i) first, toward costs and expenses hereunder and under the Multi-Year Revolving Credit Agreement including Attorney Costs (hereunder and under the Multi-Year Revolving Credit Agreement) and amounts payable under Article III hereof and amounts payable under Article III of the Multi-Year Revolving Credit Agreement incurred by the Administrative Agent and each Lender hereunder and the Administrative Agent and each Lender under the Multi-Year Revolving Credit Agreement (each as defined in the Multi-Year Revolving Credit Agreement), (ii) second, toward repayment of interest and fees then due hereunder and under the Multi-Year Revolving Credit Agreement, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (iii) third, toward repayment of principal then due hereunder and and principal and L/C Borrowings (as defined in the Multi-Year Revolving Credit Agreement) then due under the Multi-Year Revolving Credit Agreement, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.
(cd) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to Unless the Borrower or any Subsidiary or Affiliate thereof (as to which Lender has notified the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Paying Administrative Agent shall have received notice from the Borrower prior to the time by which date any payment from the Borrower is due required to be made by it to the Paying Administrative Agent for the account of the relevant Lenders hereunder hereunder, that the Borrower or such Lender, as the case may be, will not make such payment, the Paying Administrative Agent may assume that the Borrower or such Lender, as the case may be, has timely made such payment on such date in accordance herewith and maymay (but shall not be so required to), in reliance upon such assumptionthereon, distribute make available a corresponding amount to the relevant Lenders Person entitled thereto. If and to the amount due. In extent that such event, if the Borrower has payment was not in fact made to the Administrative Agent in Same Day Funds, then:
(i) if the Borrower failed to make such payment, then each of the relevant Lenders severally agrees to Lender shall forthwith on demand repay to the Paying Administrative Agent forthwith on demand the amount so distributed portion of such assumed payment that was made available to such Lender in Same Day Funds, together with interest thereon, for thereon in respect of each day from and including the date such amount is distributed was made available by the Administrative Agent to it such Lender to but excluding the date of payment such amount is repaid to the Paying AgentAdministrative Agent in Same Day Funds, at the applicable Federal Funds Effective RateRate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender shall forthwith on demand pay to the Administrative Agent the amount thereof in Same Day Funds, together with interest thereon for the period from the date such amount was made available by the Administrative Agent to the Borrower to the date such amount is recovered by the Administrative Agent (the "Compensation Period") at a rate per annum equal to the applicable Federal Funds Rate from time to time in effect. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender's Loan included in the applicable Borrowing. If such Lender does not pay such amount forthwith upon the Administrative Agent's demand therefor, the Administrative Agent may make a demand therefor upon the Borrower, and the Borrower shall pay such amount to the Administrative Agent, together with interest thereon for the Compensation Period at a rate per annum equal to the rate of interest applicable to the applicable Borrowing. Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower may have against any Lender as a result of any default by such Lender hereunder. A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this subsection (d) shall be conclusive, absent demonstrable error.
(e) If any Lender shall fail makes available to make the Administrative Agent funds for any payment required Loan to be made by it pursuant such Lender as provided in the foregoing provisions of this Article II, and such funds are not made available to Section 2.05(b) or 2.15(d), then the Paying Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received Borrower by the Paying Administrative Agent because the conditions to the applicable Credit Extension set forth in Article IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent, except to the extent such funds do not constitute the funding of a risk participation under Article II, shall return such funds (in like funds as received from such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans are several and not joint. The failure of any Lender to make any Loan on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the account failure of such any other Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paidso make its Loan.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.
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