Procedure for Making Advances. (a) The Administrative Agent shall make Advances available to the relevant Borrowers as required hereunder by debiting the account of the Administrative Agent to which the Relevant Lenders’ Main Facility Rateable Portions of such Advances have been credited in accordance with Section 11.2(b) (or causing such account to be debited) and, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring (or causing to be transferred) like funds in accordance with the instructions of the Borrower as set forth in the Drawdown Notice in respect of each Advance; provided that the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agent. (b) Unless the Administrative Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Agent forthwith after demand therefor by the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Agent to such Relevant Lender and such Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion of the Advance for purposes of this Agreement and the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent. (c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance to be made by such other Lender on the date of any Advance. (d) Where a Drawdown under the Facility and a repayment of an Advance under the Facility are to occur on the same day, the Administrative Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent. (e) This Section 11.2 shall not apply to Swing Line Advances. (f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent, (i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; (ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder; (iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and (iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement.
Appears in 2 contracts
Sources: Revolving Term Credit Agreement (Celestica Inc), Revolving Term Credit Agreement (Celestica Inc)
Procedure for Making Advances. (a) The Administrative Agent shall make Advances available to the relevant Borrowers as required hereunder by debiting the account of the Administrative Agent to which the Relevant Lenders’ ' Main Facility Rateable Portions of such Advances have been credited in accordance with Section 11.2(b) (or causing such account to be debited) and, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring (or causing to be transferred) like funds in accordance with the instructions of the Borrower as set forth in the Drawdown Notice in respect of each Advance; provided that the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s 's Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Agent forthwith after demand therefor by the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Agent to such Relevant Lender and such Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion of the Advance for purposes of this Agreement and the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance to be made by such other Lender on the date of any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance under the Facility are to occur on the same day, the Administrative Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement.
Appears in 1 contract
Procedure for Making Advances. (a) The Administrative Agent shall make Advances available Simultaneous with each Advance Request, the Company will deliver to the relevant Borrowers Lender (i) a certificate executed by the President, Chief Executive Officer or Chief Financial Officer of Borrower attesting in their capacity as required executive officers of such Borrower that, as at the date of each Advance Request, no Default or Event of Default hereunder by debiting the account shall have occurred and be continuing, and (ii) a reasonably detailed statement of the Administrative Agent to which intended use of the Relevant Lenders’ Main Facility Rateable Portions proceeds of such Advances have been credited in accordance with Section 11.2(b) (Advance, including if applicable the item or causing such account items to be debitedpurchased and the Indebtedness or other liabilities to be paid (the "Advance Analysis"); (b) andThe Lender shall notify the Company, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring within five (or causing to be transferred5) like funds in accordance with the instructions Business Days of receipt of the Borrower as Advance Analysis whether or not the Lender will make the Advance. The Lender may refuse to make the Advance if: (i) it does not approve the use of the proceeds of such Advance Request for the uses set forth in the Drawdown Notice in respect of each Advance; provided that Advance Analysis (the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions"Written Notification"), which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent approval shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amountunreasonably withheld. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant LenderAmong other things, it shall reimburse such amount not be unreasonable for the Lender to disapprove the Administrative Agent forthwith after demand therefor by Advance Request because either of the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in Borrowers has suffered a certificate delivered by the Administrative Agent to such Relevant Lender Material Adverse Effect and such Borrower (which certificate shall contain reasonable details of how Material Adverse Effect remains uncured. In addition, the amount payable is calculated) and shall be conclusive and binding, for all purposesLender may refuse to make an Advance if, in the absence exercise of manifest error. If its sole discretion it determines that it would be imprudent to make such Relevant Lender makes the payment to the Administrative Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion Advance because of the Advance for purposes status of this Agreement and any litigation or investigation respecting either of the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.Borrowers or their officers or directors;
(c) The failure If Lender does not approve the Advance Request for any reason other than the status of any litigation or investigation, the Written Notification shall provide a reasonably detailed explanation of the reason(s) therefor. Upon approval of the Advance Request by the Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion it will authorize an immediate drawing of such Advance on under the Drawdown Date, but no Lender shall be responsible Line of Credit and fund the Advance for the failure purposes specified in the Advance Analysis for any reason other than the status of any other litigation or investigation. In the event that the Lender does not approve the Advance Analysis, the parties shall promptly undertake in good faith to make expeditiously resolve the Main Facility Rateable Portion matter; if the parties do not resolve the matter to their mutual satisfaction by the earlier of (a) five (5) business days after Borrower's receipt of the Written Notification, or (b) ten (10) business days after Lender's receipt of the Advance Analysis, the parties shall submit this matter to arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and jointly request that said arbitration be made conducted in an expedited manner, and the parties shall abide by such other Lender on and perform any decision and/or award rendered by the date arbitrator(s) and agree that a judgment of any Advance.court having jurisdiction may be entered upon the award, and that neither party shall seek to challenge or overturn the decision and/or award rendered by the arbitrator(s). Any arbitration proceedings conducted hereunder shall be held in New York, New York; and
(d) Where a Drawdown under If the Facility and a repayment actual use of an proceeds differs materially from the purposes specified in the Advance under the Facility are to occur on the same dayAnalysis, the Administrative Agent Company shall not make available to notify the relevant Borrower the amount Lender in a writing which shall provide (i) a reasonably detailed explanation of the Advance to be drawn down until reasons for the Administrative Agent is satisfied that it has received irrevocable change; and irreversible payment (ii) an updated statement of the amount to be prepaid or repaidintended use of proceeds. Notwithstanding the foregoing, in the absence After receipt of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agentsuch notice, the risk of non-receipt of parties shall follow the amount to be repaid is that of the Relevant Lenders procedures enumerated in Sections 2.02(b) and not of the Administrative Agent2.02(c) above.
(e) This Section 11.2 The Lender and Borrowers agree that the $1,000,000 cash payment made by Lender in connection with the Stock Purchase shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times Company and shall constitute the initial Advance hereunder made as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this AgreementAgreement Date.
Appears in 1 contract
Procedure for Making Advances. (a) The Administrative Agent shall make Advances available to the relevant Borrowers as required hereunder by debiting the account of the Administrative Agent to which the Relevant Lenders’ Main Facility Rateable Portions of such Advances have been credited in accordance with Section 11.2(b) (or causing such account to be debited) and, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring (or causing to be transferred) like funds in accordance with the instructions of the Borrower as set forth in the Drawdown Notice in respect of each Advance; provided that the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Agent forthwith after demand therefor by the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Agent to such Relevant Lender and such Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion of the Advance for purposes of this Agreement and the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance to be made by such other Lender on the date of any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance under the Facility are to occur on the same day, the Administrative Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement.
Appears in 1 contract
Procedure for Making Advances. (a) The Administrative Agent shall make Advances available to the relevant Borrowers as required hereunder by debiting the account of the Administrative Agent to which the Relevant Lenders’ ' Main Facility Rateable Portions of such Advances have been credited in accordance with Section 11.2(b) (or causing such account to be debited) and, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring (or causing to be transferred) like funds in accordance with the instructions of the Borrower as set forth in the Drawdown Notice in respect of each Advance; provided that the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s 's Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Agent forthwith after demand therefor by the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Agent to such Relevant Lender and such Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion of the Advance for purposes of this Agreement and the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance to be made by such other Lender on the date of any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance under the Facility are to occur on the same day, the Administrative Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement.
Appears in 1 contract
Procedure for Making Advances. (a) The Administrative Agent shall make Advances available to the relevant Borrowers as required hereunder by debiting the account of the Administrative Agent to which the Relevant Lenders’ ' Main Facility Rateable Portions of such Advances have been credited in accordance with Section 11.2(b9.2(b) (or causing such account to be debited) and, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring (or causing to be transferred) like funds in accordance with the instructions of the Borrower as set forth in the Drawdown Notice in respect of each Advance; provided that the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the -66- Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s 's Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Agent forthwith after demand therefor by the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Agent to such Relevant Lender and such Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion of the Advance for purposes of this Agreement and the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance to be made by such other Lender on the date of any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance under the Facility are to occur on the same day, the Administrative Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent.
(e) This Section 11.2 9.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement.
Appears in 1 contract
Sources: Four Year Revolving Term Credit Agreement (Celestica Inc)
Procedure for Making Advances. (a) The Administrative Agent shall make Advances available Simultaneous with each Advance Request, the Company will deliver to the relevant Borrowers Lender (i) a certificate executed by the President, Chief Executive Officer or Chief Financial Officer of Borrower attesting in their capacity as required executive officers of such Borrower that, as at the date of each Advance Request, no Default or Event of Default hereunder by debiting the account shall have occurred and be continuing, and (ii) a reasonably detailed statement of the Administrative Agent to which intended use of the Relevant Lenders’ Main Facility Rateable Portions proceeds of such Advances have been credited in accordance with Section 11.2(b) (Advance, including if applicable the item or causing such account items to be debitedpurchased and the Indebtedness or other liabilities to be paid (the "Advance Analysis");
(b) andThe Lender shall notify the Company, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring within five (or causing to be transferred5) like funds in accordance with the instructions Business Days of receipt of the Borrower as Advance Analysis whether or not the Lender will make the Advance. The Lender may refuse to make the Advance if: (i) it does not approve the use of the proceeds of such Advance Request for the uses set forth in the Drawdown Notice in respect of each Advance; provided that Advance Analysis (the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions"Written Notification"), which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent approval shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amountunreasonably withheld. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant LenderAmong other things, it shall reimburse such amount not be unreasonable for the Lender to disapprove the Administrative Agent forthwith after demand therefor by Advance Request because either of the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in Borrowers has suffered a certificate delivered by the Administrative Agent to such Relevant Lender Material Adverse Effect and such Borrower (which certificate shall contain reasonable details of how Material Adverse Effect remains uncured. In addition, the amount payable is calculated) and shall be conclusive and binding, for all purposesLender may refuse to make an Advance if, in the absence exercise of manifest error. If its sole discretion it determines that it would be imprudent to make such Relevant Lender makes the payment to the Administrative Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion Advance because of the Advance for purposes status of this Agreement and any litigation or investigation respecting either of the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.Borrowers or their officers or directors;
(c) The failure If Lender does not approve the Advance Request for any reason other than the status of any litigation or investigation, the Written Notification shall provide a reasonably detailed explanation of the reason(s) therefor. Upon approval of the Advance Request by the Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion it will authorize an immediate drawing of such Advance on under the Drawdown Date, but no Lender shall be responsible Line of Credit and fund the Advance for the failure purposes specified in the Advance Analysis for any reason other than the status of any other litigation or investigation. In the event that the Lender does not approve the Advance Analysis, the parties shall promptly undertake in good faith to make expeditiously resolve the Main Facility Rateable Portion matter; if the parties do not resolve the matter to their mutual satisfaction by the earlier of (a) five (5) business days after Borrower's receipt of the Written Notification, or (b) ten (10) business days after Lender's receipt of the Advance Analysis, the parties shall submit this matter to arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and jointly request that said arbitration be made conducted in an expedited manner, and the parties shall abide by such other Lender on and perform any decision and/or award rendered by the date arbitrator(s) and agree that a judgment of any Advance.court having jurisdiction may be entered upon the award, and that neither party shall seek to challenge or overturn the decision and/or award rendered by the arbitrator(s). Any arbitration proceedings conducted hereunder shall be held in New York, New York; and
(d) Where a Drawdown under If the Facility and a repayment actual use of an proceeds differs materially from the purposes specified in the Advance under the Facility are to occur on the same dayAnalysis, the Administrative Agent Company shall not make available to notify the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
writing which shall provide (i) first, to a reasonably detailed explanation of the payment of any amounts owing by such Defaulting Lender to reasons for the Administrative Agent hereunder;
change; and (ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations an updated statement of the Defaulting Lender under this Agreementintended use of proceeds. After receipt of such notice, the parties shall follow the procedures enumerated in Sections 2.02(b) and 2.02(c) above.
Appears in 1 contract
Procedure for Making Advances. (a) The Administrative Relevant Facility Agent shall make Advances available to the relevant Borrowers as required hereunder by debiting the account of the Administrative Relevant Facility Agent to which the Relevant Lenders’ ' Main Facility Rateable Portions of such Advances have been credited in accordance with Section 11.2(b) (or causing such account to be debited) and, in the absence of other arrangements agreed to by the Administrative Relevant Facility Agent and Celestica in writing, by transferring (or causing to be transferred) like funds in accordance with the instructions of the Borrower as set forth in the Drawdown Notice in respect of each Advance; provided that the obligation of the Administrative Relevant Facility Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Relevant Facility Agent shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful willful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Relevant Facility Agent.
(b) Unless the Administrative Relevant Facility Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Relevant Facility Agent its Main Facility Rateable Portion of such Advance, the Administrative Relevant Facility Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Relevant Facility Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Relevant Facility Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Relevant Facility Agent, then such Relevant Lender shall pay to the Administrative Relevant Facility Agent forthwith on demand such Relevant Lender’s 's Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Relevant Facility Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Relevant Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Relevant Facility Agent forthwith after demand therefor by the Administrative Relevant Facility Agent. The amount payable to the Administrative Relevant Facility Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Relevant Facility Agent to such Relevant Lender and such Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Relevant Facility Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion of the Advance for purposes of this Agreement and the Administrative Relevant Facility Agent shall make appropriate entries in the books of account maintained by the Administrative Relevant Facility Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance to be made by such other Lender on the date of any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance under the Facility are to occur on the same day, the Administrative Relevant Facility Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Relevant Facility Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Relevant Facility Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Relevant Facility Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement.
Appears in 1 contract
Procedure for Making Advances. (a) The Administrative Agent shall make Except as expressly otherwise provided herein, all Advances available to made by the relevant Borrowers as required hereunder by debiting the account of the Administrative Agent to which the Relevant Lenders’ Main Facility Rateable Portions of such Advances have been credited Lenders will be made in accordance with Section 11.2(beach Lender's Pro Rata Share of such Advance.
(b) (or causing such account to be debited) and, in the absence of other arrangements agreed to by the Administrative The Agent and Celestica in writing, by transferring (or causing to be transferred) like funds in accordance with the instructions of the Borrower as set forth in the Drawdown Notice in respect of each Advance; provided that the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent shall will not be liable for any damages, claims or costs which may be suffered by the Borrower and or the Subsidiaries or any of the Lenders occasioned by the failure of such a Lender to make an Advance or the failure of any Advance to reach the its designated destination, except unless such failure is due to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (of the Agent as determined by a court of competent jurisdiction in a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agentjudgment.
(bc) Unless the Administrative Agent has been notified by a Relevant Lender on the at least one (1) Banking Day prior to the Drawdown Date an Advance requested by a the Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion Pro Rata Share of such the relevant Advance, the Administrative Agent may assume that such Relevant Lender has made or will make such portion of the Advance available to the Administrative Agent on the Drawdown Date date of such Advance in accordance with the provisions hereof and the Administrative Agent may, but shall be in no way obligated to, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion Pro Rata Share of the an Advance available to the Administrative Agent, then such Relevant Lender shall agrees to pay to the Administrative Agent forthwith on demand such Relevant Lender’s Main Facility Rateable Portion 's Pro Rata Share of the such Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder hereunder by the Borrower in respect of such AdvanceAdvance or, in the case of funds made available in anticipation of a Lender remitting proceeds of a Bankers' Acceptance, at the rate of interest per annum applicable to a Prime Loan) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, obligation if such Relevant Lender fails to so pay, the Borrower covenants and agrees that that, without prejudice to any rights such the Borrower may have against such Relevant Lender, it shall reimburse repay such amount to the Administrative Agent forthwith after demand therefor by the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Agent to such Relevant Lender and such the Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposesprima facie evidence thereof, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Agent required herein, the amount so paid shall constitute such Relevant Lender shall be considered to have made its Main Facility Rateable Portion Lender's Pro Rata Share of the Advance for purposes of this Agreement and the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance to be made by such other Lender on the date of any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance under the Facility are to occur on the same day, the Administrative Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement.
Appears in 1 contract
Procedure for Making Advances. (a) The Administrative Relevant Facility Agent shall make Advances available to the relevant Borrowers as required hereunder by debiting the account of the Administrative Relevant Facility Agent to which the Relevant Lenders’ Main Facility ' Rateable Portions of such Advances have been credited in accordance with Section 11.2(b) (or causing such account to be debited) and, in the absence of other arrangements agreed to by the Administrative Relevant Facility Agent and Celestica in writing, by transferring (or causing to be transferred) like funds in accordance with the instructions of the Borrower as set forth in the Drawdown Notice in respect of each Advance; provided that the obligation of the Administrative Relevant Facility Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Relevant Facility Agent shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful willful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Relevant Facility Agent.
(b) Unless the Administrative Relevant Facility Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower the Borrowers that such Relevant Lender will not make available to the Administrative Relevant Facility Agent its Main Facility Rateable Portion of such Advance, the Administrative Relevant Facility Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Relevant Facility Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Relevant Facility Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Relevant Facility Agent, then such Relevant Lender shall agree to pay to the Administrative Relevant Facility Agent forthwith on demand such Relevant Lender’s Main Facility 's Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Relevant Facility Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Relevant Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Relevant Facility Agent forthwith after demand therefor by the Administrative Relevant Facility Agent. The amount payable to the Administrative Relevant Facility Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Relevant Facility Agent to such Relevant Lender and such Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Relevant Facility Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion of the Advance for purposes of this Agreement and the Administrative Relevant Facility Agent shall make appropriate entries in the books of account maintained by the Administrative Relevant Facility Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance to be made by such other Lender on the date of any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance under the Facility are to occur on the same day, the Administrative Relevant Facility Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Relevant Facility Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Relevant Facility Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Relevant Facility Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Celestica Inc)
Procedure for Making Advances. (a) The Administrative Agent shall make Advances available Simultaneous with each Advance Request, the Company will deliver to the relevant Borrowers Lender (i) a certificate executed by the President, Chief Executive Officer or Chief Financial Officer of Borrower attesting in their capacity as required executive officers of such Borrower that, as at the date of each Advance Request, no Default or Event of Default hereunder by debiting the account shall have occurred and be continuing, and (ii) a reasonably detailed statement of the Administrative Agent to which intended use of the Relevant Lenders’ Main Facility Rateable Portions proceeds of such Advances have been credited in accordance with Section 11.2(b) (Advance, including if applicable the item or causing such account items to be debitedpurchased and the Indebtedness or other liabilities to be paid (the "Advance Analysis");
(b) andThe Lender shall notify the Company, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring within five (or causing to be transferred5) like funds in accordance with the instructions Business Days of receipt of the Borrower as Advance Analysis whether or not the Lender will make the Advance. The Lender may refuse to make the Advance if: (i) it does not approve the use of the proceeds of such Advance Request for the uses set forth in the Drawdown Notice in respect of each Advance; provided that Advance Analysis (the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions"Written Notification"), which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent approval shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amountunreasonably withheld. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant LenderAmong other things, it shall reimburse such amount not be unreasonable for the Lender to disapprove the Administrative Agent forthwith after demand therefor by Advance Request because either of the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in Borrowers has suffered a certificate delivered by the Administrative Agent to such Relevant Lender Material Adverse Effect and such Borrower (which certificate shall contain reasonable details of how Material Adverse Effect remains uncured. In addition, the amount payable is calculated) and shall be conclusive and binding, for all purposesLender may refuse to make an Advance if, in the absence exercise of manifest error. If its sole discretion it determines that it would be imprudent to make such Relevant Lender makes the payment to the Administrative Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion Advance because of the Advance for purposes status of this Agreement and any litigation or investigation respecting either of the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.Borrowers or their officers or directors;
(c) The failure If Lender does not approve the Advance Request for any reason other than the status of any litigation or investigation, the Written Notification shall provide a reasonably detailed explanation of the reason(s) therefor. Upon approval of the Advance Request by the Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion it will authorize an immediate drawing of such Advance on under the Drawdown Date, but no Lender shall be responsible Line of Credit and fund the Advance for the failure purposes specified in the Advance Analysis for any reason other than the status of any other litigation or investigation. In the event that the Lender does not approve the Advance Analysis, the parties shall promptly undertake in good faith to make expeditiously resolve the Main Facility Rateable Portion matter; if the parties do not resolve the matter to their mutual satisfaction by the earlier of (a) five (5) business days after Borrower's receipt of the Written Notification, or (b) ten (10) business days after Lender's receipt of the Advance Analysis, the parties shall submit this matter to arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and jointly request that said arbitration be made conducted in an expedited manner, and the parties shall abide by such other Lender on and perform any decision and/or award rendered by the date arbitrator(s) and agree that a judgment of any Advance.court having jurisdiction may be entered upon the award, and that neither party shall seek to challenge or overturn the decision and/or award rendered by the arbitrator(s). Any arbitration proceedings conducted hereunder shall be held in New York, New York; and
(d) Where a Drawdown under If the Facility and a repayment actual use of an proceeds differs materially from the purposes specified in the Advance under the Facility are to occur on the same dayAnalysis, the Administrative Agent Company shall not make available to notify the relevant Borrower the amount Lender in a writing which shall provide (i) a reasonably detailed explanation of the Advance to be drawn down until reasons for the Administrative Agent is satisfied that it has received irrevocable change; and irreversible payment (ii) an updated statement of the amount to be prepaid or repaidintended use of proceeds. Notwithstanding the foregoing, in the absence After receipt of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agentsuch notice, the risk of non-receipt of parties shall follow the amount to be repaid is that of the Relevant Lenders procedures enumerated in Sections 2.02(b) and not of the Administrative Agent2.02(c) above.
(e) This Section 11.2 The Lender and Borrowers agree that the $1,000,000 cash payment made by Lender in connection with the Stock Purchase shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times Company and shall constitute the initial Advance hereunder made as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this AgreementAgreement Date.
Appears in 1 contract
Procedure for Making Advances. (a) Under the --------------------------------------- Revolving Loan; Lender Protection Loans. ---------------------------------------- The Administrative Agent Borrowers may borrow under the Revolving Credit Facility on any Business Day. Advances under the Revolving Loan shall make Advances available be deposited to the relevant Borrowers as required hereunder by debiting the a demand deposit account of a Borrower with the Administrative Agent to Lender or shall be otherwise applied as directed by the Borrowers, which direction the Relevant Lenders’ Main Facility Rateable Portions of such Advances have been credited in accordance with Section 11.2(b) (or causing such account Lender may require to be debited) and, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring . Not later than 1:00 p.m. (or causing to be transferredEastern Time) like funds in accordance with the instructions of the Borrower as set forth in the Drawdown Notice in respect of each Advance; provided that the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Agent forthwith after demand therefor by the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Agent to such Relevant Lender and such Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion of the Advance for purposes of this Agreement and the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance to be made by such other Lender on the date of any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance under the Facility are to occur on the same dayrequested borrowing, the Administrative Agent Borrowers shall not make available to give the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment Lender oral or written notice (a "Loan Notice") of the amount and (if requested by the Lender) the purpose of the requested borrowing and if requested by the Lender, be accompanied by a Borrowing Base Report. Any oral Loan Notice shall be confirmed in writing by the Borrowers within three (3) Business Days after the making of the requested advance under the Revolving Loan. Each Loan Notice shall be irrevocable. In addition, each of the Borrowers hereby irrevocably authorizes the Lender at any time and from time to be prepaid time, without further request from or repaid. Notwithstanding notice to the foregoingBorrowers, to make advances under the Revolving Loan, and irrevocably authorizes the Lender to establish, without duplication, reserves against the Borrowing Base, which the Lender, in its sole and absolute discretion, deems necessary or appropriate to protect the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part interests of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement Agreement, including, without limitation, advances and reserves under the Revolving Loan made to cover debit balances in the Revolving Loan Account, principal of, and/or interest on, any Loan, the Obligations (whether on account of principalincluding, interestwithout limitation, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit Obligations), and/or Enforcement Costs, prior to, on, or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations after the termination of the Defaulting Lender other advances under this Agreement, regardless of whether the outstanding principal amount of the Revolving Loan that the Lender may advance or the Lender may reserve hereunder exceeds the Total Revolving Credit Committed Amount or the Borrowing Base.
Appears in 1 contract
Procedure for Making Advances. (a) Under the --------------------------------------- Revolving Loan; Lender Protection Loans. ---------------------------------------- The Administrative Agent Borrowers may borrow under the Revolving Credit Facility on any Business Day. Advances under the Revolving Loan shall make Advances available be deposited to the relevant Borrowers as required hereunder by debiting the a demand deposit account of a Borrower with the Administrative Agent to or shall be otherwise applied as directed by the Borrowers, which direction the Relevant Lenders’ Main Facility Rateable Portions of such Advances have been credited in accordance with Section 11.2(b) (or causing such account Agent may require to be debited) and, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring . Not later than 1:00 p.m. (or causing to be transferredEastern Time) like funds in accordance with on the instructions date of the Borrower as set forth in requested borrowing, the Drawdown Notice in respect of each Advance; provided that Borrowers shall give the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent shall not be liable for any damages, claims oral or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct written notice (as determined by a final, non-appealable decision of a court of competent jurisdiction"Loan Notice") of the Administrative amount and (if requested by the Agent.
(b) Unless the Administrative Agent has been notified purpose of the requested borrowing and if requested by the Agent, be accompanied by a Relevant Borrowing Base Report. Any oral Loan Notice shall be confirmed in writing by the Borrowers within three (3) Business Days after the making of the requested advance under the Revolving Loan. Each Loan Notice shall be irrevocable. Upon receipt of any such Loan Notice, the Agent shall promptly notify each Lender of the amount of each advance to be made by such Lender on the Banking Day prior to requested borrowing date under such Lender's Revolving Credit Commitment. Not later than 2:00 p.m. (Eastern Time) on each requested borrowing date for the Drawdown Date requested by a Borrower that such Relevant making of advances under the Revolving Loan, each Lender will not make available to shall, if it has received timely notice from the Administrative Agent its Main Facility Rateable Portion of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon Borrowers' request for such assumptionadvances, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance Agent, in funds immediately available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Agent forthwith after demand therefor by the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as 's office set forth in a certificate delivered by the Administrative Agent to such Relevant Lender and such Borrower Section 9.1 (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Agent required hereinNotices), such Relevant Lender shall be considered to have made its Main Facility Rateable Portion Lender's Pro Rata Share of the Advance for purposes of this Agreement and the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance advances to be made by on such other Lender on date. In addition, each of the date of Borrowers hereby irrevocably authorizes the Lenders at any Advance.
(d) Where a Drawdown time and from time to time, without further request from or notice to the Borrowers, to make advances under the Facility Revolving Loan, and a repayment irrevocably authorizes the Agent to establish, without duplication, reserves against the Borrowing Base, which the Agent, in its sole and absolute discretion, deems necessary or appropriate to protect the interests of an Advance the Agent and/or any or all of the Lenders under this Agreement, including, without limitation, advances and reserves under the Facility are Revolving Loan made to occur on cover shortages, debit balances or overdrafts in the same dayRevolving Loan Account, principal of, and/or interest on, any Loan, the Administrative Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoingObligations (including, in the absence of gross negligence or wilful misconduct (as determined by a finalwithout limitation, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit Obligations), and/or Enforcement Costs, prior to, on, or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations after the termination of the Defaulting Lender other advances under this Agreement, regardless of whether the outstanding principal amount of the Revolving Loan that the Lenders may advance or the Agent may reserve hereunder exceeds the Total Revolving Credit Committed Amount or the Borrowing Base.
Appears in 1 contract
Procedure for Making Advances. (a) The Administrative Agent shall make Advances available to the relevant Borrowers as required hereunder by debiting the account of the Administrative Agent to which the Relevant Lenders’ ' Main Facility Rateable Portions of such Advances have been credited in accordance with Section 11.2(b9.2(b) (or causing such account to be debited) and, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring (or causing to be transferred) like funds in accordance with the instructions of the Borrower as set forth in the Drawdown Notice in respect of each Advance; provided that the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s 's Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Agent forthwith after demand therefor by the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Agent to such Relevant Lender and such Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion of the Advance for purposes of this Agreement and the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance to be made by such other Lender on the date of any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance under the Facility are to occur on the same day, the Administrative Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent.
(e) This Section 11.2 9.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement.
Appears in 1 contract
Procedure for Making Advances. (a) The Administrative Agent shall make Advances available to the relevant Borrowers as required hereunder by debiting the account of the Administrative Agent to which the Relevant Lenders’ Main Facility Rateable Portions or Term Loan A Facility Rateable Portions, as applicable, of such Advances have been credited in accordance with Section 11.2(b) (or causing such account to be debited) and, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring (or causing to be transferred) like funds in accordance with the instructions of the Borrower as set forth in the Drawdown Notice in respect of each Advance; provided that the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion or Term Loan A Facility Rateable Portion, as applicable, of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion or Term Loan A Facility Rateable Portion, as applicable, of the Advance available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s Main Facility Rateable Portion Portion, or Term Loan A Facility Rateable Portion, as applicable, of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Agent forthwith after demand therefor by the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Agent to such Relevant Lender and such Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion Portion, or Term Loan A Facility Rateable Portion, as applicable, of the Advance for purposes of this Agreement and the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion or Term Loan A Facility Rateable Portion, as applicable, of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion or Term Loan A Facility Rateable Portion, as applicable, of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion or Term Loan A Facility Rateable Portion, as applicable, of the Advance to be made by such other Lender on the date of any Advance.
(d) Where a Drawdown under the Facility Facilities and a repayment of an Advance under the Facility Facilities are to occur on the same day, the Administrative Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement.
Appears in 1 contract
Sources: Credit Agreement (Celestica Inc)
Procedure for Making Advances. (a) The Administrative Agent shall make Advances available to the relevant Borrowers as required hereunder by debiting the account of the Administrative Agent to which the Relevant Lenders’ Main Facility Rateable Portions of such Advances have been credited in accordance with Section 11.2(b) (or causing such account to be debited) and, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring (or causing to be transferred) like funds in accordance with the instructions of the Borrower as set forth in the Drawdown Notice in respect of each Advance; provided that the obligation of the Administrative Agent hereunder shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with the provisions relating thereto and the Administrative Agent shall not be liable for any damages, claims or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) of the Administrative Agent.
(b) Unless the Administrative Agent has been notified by a Relevant Lender on the Banking Day prior to the Drawdown Date requested by a Borrower that such Relevant Lender will not make available to the Administrative Agent its Main Facility Rateable Portion of such Advance, the Administrative Agent may assume that such Relevant Lender has made such portion of the Advance available to the Administrative Agent on the Drawdown Date in accordance with the provisions hereof and the Administrative Agent may, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding such obligation, if such Relevant Lender fails to so pay, the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Agent forthwith after demand therefor by the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Agent to such Relevant Lender and such Borrower (which certificate shall contain reasonable details of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Agent required herein, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion of the Advance for purposes of this Agreement and the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance to be made by such other Lender on the date of any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance under the Facility are to occur on the same day, the Administrative Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreement.
Appears in 1 contract
Procedure for Making Advances. (a) Under the Revolving ------------------------------------------------- Credit; LenderProtection Loans. ------------------------------- The Administrative Agent Borrowers may borrow under the Revolving Credit Facility on any Business Day. Advances under the Revolving Credit shall make Advances available be deposited to the relevant Borrowers as required hereunder by debiting the a demand deposit account of the Administrative Agent to Company with the Lender or shall be otherwise applied as directed by the Company, which direction the Relevant Lenders’ Main Facility Rateable Portions of such Advances have been credited in accordance with Section 11.2(b) (or causing such account Lender may require to be debited) and, in the absence of other arrangements agreed to by the Administrative Agent and Celestica in writing, by transferring (or causing provided, however, the Lender may make the advances referred to be transferred) like funds in accordance with Section 2.2.3, without the instructions direction of the Borrower as set forth in Company. Except for advances made under the Drawdown Notice in respect of each Advance; provided that Revolving Credit by the obligation Lender which the Lender is authorized to make under this Agreement, not later than 11:00 a.m. (Eastern Standard Time) on the date of the Administrative Agent hereunder requested borrowing, the Company shall be limited to taking such steps as are commercially reasonable to implement such instructions, which steps once taken shall constitute conclusive and binding evidence that such funds were advanced hereunder in accordance with give the provisions relating thereto and the Administrative Agent shall not be liable for any damages, claims Lender oral or costs which may be suffered by the Borrower and occasioned by the failure of such Advance to reach the designated destination, except to the extent such damages, claims or costs are the result of the gross negligence or wilful misconduct written notice (as determined by a final, non-appealable decision of a court of competent jurisdiction"Loan Notice") of the Administrative Agent.
amount and (bif requested by the Lender) Unless the Administrative Agent has been notified purpose of the requested borrowing. Any oral Loan Notice shall be confirmed in writing by a Relevant the Company within three (3) Business Days after the making of the requested advance under the Revolving Credit. Each Loan Notice shall be irrevocable. In addition, each of the Borrowers hereby irrevocably authorizes the Lender on the Banking Day prior at any time and from time to time, without further request from or notice to the Drawdown Date requested by a Borrower that such Relevant Lender will not Borrowers, to make available advances under the Revolving Credit, and to establish, without duplication, reserves against the Administrative Agent Borrowing Base, which the Lender, in its Main Facility Rateable Portion sole and absolute discretion, deems necessary or appropriate to protect the interests of such Advancethe Lender, including, without limitation, advances and reserves under the Revolving Credit made to cover debit balances in the Revolving Loan Account, principal of, and/or interest on, any Revolving Credit, the Administrative Agent may assume that such Relevant Lender has made such portion Obligations (including, without limitation, any Letter of Credit Obligations), and/or Enforcement Costs, prior to, on, or after the termination of other advances under this Agreement, regardless of whether the outstanding principal amount of the Advance available to Revolving Credit that the Administrative Agent on Lender may advance or reserve hereunder exceeds the Drawdown Date in accordance with Total Revolving Credit Committed Amount or the provisions hereof and the Administrative Agent mayBorrowing Base, in reliance upon such assumption, make available to the Borrower on such date a corresponding amount. If and to the extent such Relevant Lender shall not have so made its Main Facility Rateable Portion of the Advance available to the Administrative Agent, then such Relevant Lender shall pay to the Administrative Agent forthwith on demand such Relevant Lender’s Main Facility Rateable Portion of the Advance and all reasonable costs and expenses incurred by the Administrative Agent in connection therewith together with interest thereon (at the rate payable thereunder by the Borrower in respect of such Advance) for each day from the date such amount is made available to the Borrower until the date such amount is paid to the Administrative Agent; provided, however, that notwithstanding the Lender agrees to give the Company two (2) Business Days prior notice of any such obligationadvances, if such Relevant Lender fails to so pay, other than advances for the Borrower covenants and agrees that without prejudice to any rights such Borrower may have against such Relevant Lender, it shall reimburse such amount to the Administrative Agent forthwith after demand therefor by the Administrative Agent. The amount payable to the Administrative Agent pursuant hereto shall be as set forth in a certificate delivered by the Administrative Agent to such Relevant Lender and such Borrower (which certificate shall contain reasonable details purposes of how the amount payable is calculated) and shall be conclusive and binding, for all purposes, covering debit balances in the absence of manifest error. If such Relevant Lender makes the payment to the Administrative Agent required hereinRevolving Loan Account, such Relevant Lender shall be considered to have made its Main Facility Rateable Portion of the Advance for purposes of this Agreement principal of, and/or interest on, any Revolving Credit, and the Administrative Agent shall make appropriate entries in the books of account maintained by the Administrative Agent.
(c) The failure of any Lender to make its Main Facility Rateable Portion of any Advance shall not relieve any other Lender of its obligation, if any, hereunder to make its Main Facility Rateable Portion of such Advance on the Drawdown Date, but no Lender shall be responsible for the failure of any other Lender to make the Main Facility Rateable Portion of the Advance to be made by such other Lender on the date of any Advance.
(d) Where a Drawdown under the Facility and a repayment of an Advance under the Facility are to occur on the same day, the Administrative Agent shall not make available to the relevant Borrower the amount of the Advance to be drawn down until the Administrative Agent is satisfied that it has received irrevocable and irreversible payment of the amount to be prepaid or repaid. Notwithstanding the foregoing, in the absence of gross negligence or wilful misconduct (as determined by a final, non-appealable decision of a court of competent jurisdiction) on the part of the Administrative Agent, the risk of non-receipt of the amount to be repaid is that of the Relevant Lenders and not of the Administrative Agent.
(e) This Section 11.2 shall not apply to Swing Line Advances.
(f) Any amount payable to a Defaulting Lender under this Agreement (whether on account of principal, interest, fees or otherwise) shall, in lieu of being distributed to such Defaulting Lender, be retained by the Administrative Agent in a segregated account and, subject to any applicable requirements of law, be applied at such time or times as may be determined by the Administrative Agent,
(i) first, to the payment of any amounts owing by Fees, unless the Lender in its exercise of its reasonable discretion determines that the failure to provide such Defaulting Lender to the Administrative Agent hereunder;
(ii) second, to the payment of any amounts owing by such Defaulting Lender to the Issuing Bank hereunder;
(iii) third, to the funding of any Advance or the funding or cash collateralization of any participating interest notice could result in any Letter of Credit or Swing Line Advance; and
(iv) fourth, held in such account as cash collateral for future funding obligations of the Defaulting Lender under this Agreementa Material Adverse Effect.
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Sources: Financing and Security Agreement (Spacehab Inc \Wa\)