Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between the Administrative Agent and Lenders, the Administrative Agent may, at its option, subject to the terms of this Section 3.6, make available, on behalf of Lenders, the full amount of the Revolving Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”). (b) With respect to (i) all Swingline Loans and (ii) all Revolving Loans made by the Administrative Agent on behalf of Lenders as provided in this Section 3.6, the amount of each Lender’s Pro Rata Share of such outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. on the Business Day immediately preceding the date of each settlement computation; provided that the Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. The Administrative Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by the Administrative Agent and received by a Lender prior to 12:00 noon, then such Lender shall make the settlement transfer described in this Section 3.6 by no later than 3:00 p.m. on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m. on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to the Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s (other than a Defaulting Lender) Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, the Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the Administrative Agent. The Administrative Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such Loan. (c) To the extent that the Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving Loans by a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b), the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. (d) If the Administrative Agent is not funding a particular Revolving Loan to a Borrower (or the Administrative Borrower for the benefit of such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume that each Lender will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such notice. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 2 contracts

Sources: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)

Settlement Procedures. (a) In order to administer the Revolving Credit ~~Facility~~ Loan in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, so long as the ~~Administrative~~ conditions precedent set forth in SECTION 2.1 and SECTION 2.2, as the case may be, remain satisfied, Agent may, at in its ~~option~~discretion, subject to the ~~terms of this Section 3.6~~following paragraphs (b), (c) and (d), make available, on behalf of Lenders, the full amount of the Revolving ~~Loans~~ Credit Advances in an amount of up to $10,000,000 outstanding on any day (after application of payments received on such day) requested or ~~charged to any Borrower’s loan account(s) or otherwise to be advanced~~ deemed requested by ~~Lenders~~ Borrower pursuant to ~~the terms hereof~~SECTION 1.1(b) and SECTION 1.1(g), without ~~requirement of prior~~ notice to Lenders of the proposed Revolving ~~Loans (each such advance by the Administrative Agent, a “Settlement Advance”~~Credit Advance pursuant to SECTION 1.1(b). (b) ~~With respect to (i) all Swingline Loans and (ii) all~~ If Agent shall have made one or more Revolving ~~Loans made by the Administrative Agent~~ Credit Advances on behalf of Lenders as provided in this ~~Section 3.6~~SECTION 1.13(b), the amount of each Lender~~’s Pro Rata~~ 's Proportionate Share of ~~such~~ the outstanding ~~Loans~~ Revolving Credit Advances (for purposes of this SECTION 1.1 3(b)) shall be computed ~~weekly,~~ weekly rather than daily and shall be adjusted upward or downward on the basis of the amount of the outstanding ~~Loans~~ Revolving Credit Advances as of 5:00 ~~p.m.~~ P.M. (New York City time) on the Business Day immediately preceding the date of each ~~settlement~~ computation; ~~provided~~ PROVIDED, that ~~the Administrative~~ Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. ~~The Administrative~~ Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding ~~Loans~~ Revolving Credit Advances for such period (such week or lesser period or periods being ~~hereinafter~~ hereafter referred to as a ~~“Settlement Period”~~"SETTLEMENT PERIOD"). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Lender prior to 12:00 ~~noon,~~ Noon (New York City time) then such Lender shall make the ~~settlement transfer~~ transfers described in ~~this Section 3.6 by~~ the next succeeding sentence no later than ~~3:00 p.m.~~ 2:00 P.M. (New York City time) on the ~~same Business Day~~ day such summary statement was sent, and if such summary statement is sent by Agent and received by a Lender after 12:00 ~~noon~~Noon (New York City time), ~~then~~ such Lender shall make ~~the settlement transfer by not~~ such transfers no later than ~~3:00 p.m.~~ 2:00 P.M. (New York City time) on the next succeeding Business ~~Day following the date of receipt~~Day. If, ~~as of the end of~~ in any Settlement Period, the amount of a Lender~~’s Pro Rata~~ 's Proportionate Share of the outstanding ~~Loans~~ Revolving Credit Advances is more than such Lender~~’s Pro Rata~~ 's Proportionate Share of the outstanding ~~Loans as of the end of~~ Revolving Credit Advances for the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the next preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase~~. Alternatively~~; and on the other hand, if the amount of a Lender~~’s (other than a Defaulting Lender) Pro Rata~~ 's Proportionate Share of the outstanding ~~Loans~~ Revolving Credit Advances in any Settlement Period is less than the amount of such Lender~~’s Pro Rata~~ 's Proportionate Share of the outstanding ~~Loans~~ Revolving Credit Advances for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds ~~and effect such settlement~~ shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Lenders agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the ~~dollar~~ Dollar amount of its ~~Pro Rata~~ Proportionate Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanRevolving Credit Advances. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving ~~Loans~~ Credit Advances by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata SharesSECTION 1.13(a). (d) If Because Agent, on behalf of Lenders, may be advancing or may be repaid Revolving Credit Advances prior to the ~~Administrative~~ time when Lenders will actually advance or be repaid Revolving Credit Advances, interest, Non-use Fees and Letter of Credit Fees with respect to the outstanding Revolving Credit Advances shall be allocated by Agent ~~is not funding a particular Revolving Loan~~ to ~~a Borrower (or the Administrative Borrower for the benefit of such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring~~ each Lender (including Agent), and the amount of each Lender's (including Agent's) Proportionate Share shall be computed daily, in accordance with the amount of the outstanding Revolving Credit Advances actually advanced by and repaid to ~~provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume that~~ each Lender ~~will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made~~ (including Agent) on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day during each Settlement Period and shall accrue from and including the date such ~~payment was due until~~ Revolving Credit Advances are advanced by Agent to but excluding the date such ~~amount is paid to~~ Revolving Credit Advances are repaid by Borrower in accordance with SECTION 1.2 or actually settled by the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable ~~to Base Rate Loans. During the period in which such~~ Lender ~~has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained~~ as described in this Agreement or any of the other Loan Documents, the amount so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such notice. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.SECTION

Appears in 2 contracts

Sources: Credit Agreement (Galyans Trading Co Inc), Credit Agreement (Dicks Sporting Goods Inc)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between the Administrative Agent and Lenders, the Administrative Agent may, at its option, subject to the terms of this Section 3.6, make available, on behalf of Lenders, the full amount of the Revolving Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)[Reserved]. (b) With respect to (i) all Swingline Loans and (ii) all Revolving Loans made by the Administrative Agent on behalf of Lenders as provided in this Section 3.6, the amount of each Lender’s Pro Rata Share of such outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. on the Business Day immediately preceding the date of each settlement computation; provided that the Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. The Administrative Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by the Administrative Agent and received by a Lender prior to 12:00 noon, then such Lender shall make the settlement transfer described in this Section 3.6 by no later than 3:00 p.m. on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m. on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to the Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s (other than a Defaulting Lender) Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, the Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the Administrative Agent. The Administrative Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such Loan[Reserved]. (c) To No Lender shall be responsible for any default by any other Lender in the ~~extent that~~ other Lender’s obligation to make Term Loan hereunder nor shall the ~~Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment~~ Term Loan Commitment of any ~~Revolving Loans~~ Lender be increased or decreased as a result of the default by ~~a Borrower or with the collected proceeds on deposit~~ any other Lender in the ~~Administrative Agent Payment Account as described in Section 3.5(b),~~ other Lender’s obligation to make the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Term Loan ~~to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares~~hereunder. (d) If the Administrative Agent is not funding a particular Revolving Loan to a Borrower (or the Administrative Borrower for the benefit of such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s Pro Rata Share of the ~~Revolving~~ Term Loan ~~requested or otherwise made on such day~~ and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on ~~such day~~the Closing Date. If ~~the Administrative~~ Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of ~~the Administrative~~ Agent’s demand, at the highest ~~interest rate~~ Interest Rate provided for in Section 3.1 ~~applicable to Base Rate Loans~~hereof. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a ~~Revolving~~ part of the Term Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the~~ Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to ~~the Administrative~~ Agent for its own account within five (5) Business Days of ~~the~~ Administrative Borrower’s receipt of such notice, which shall constitute a payment on account of Obligations. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Term Loan Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Term Loan Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 2 contracts

Sources: Loan and Security Agreement (Franchise Group, Inc.), Loan and Security Agreement (Franchise Group, Inc.)

Appears in 2 contracts

Sources: Loan and Security Agreement (Freedom Group, Inc.), Loan and Security Agreement (Freedom Group, Inc.)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between the Administrative Agent and Lenders, the Administrative Agent may, at its option, subject to the terms of this Section 3.6, make available, on behalf of Lenders, the full amount of the Revolving Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”). (b) With respect to (i) all Swingline Loans and (ii) all Revolving Loans made by the Administrative Agent on behalf of Lenders as provided in this Section 3.6, the amount of each Lender’s Pro Rata Share of such outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. on the Business Day immediately preceding the date of each settlement computation; provided that the Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. The Administrative Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by the Administrative Agent and received by a Lender prior to 12:00 noon, then such Lender shall make the settlement transfer described in this Section 3.6 by no later than 3:00 p.m. on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m. on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to the Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s (other than a Defaulting Lender) Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, the Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the Administrative Agent. The Administrative Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to to, but ~~excluding~~ excluding, the date such Loans are either repaid by the Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f~~), (g~~) or (hg) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such Loan. (c) To the extent that the Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving Loans by a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b), the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. (d) If the Administrative Agent is not funding a particular Revolving Loan to a Borrower (or the Administrative Borrower for the benefit of such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume that each Lender will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such notice. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 2 contracts

Sources: Loan and Security Agreement (ADS Tactical, Inc.), Loan and Security Agreement (ADS Tactical, Inc.)

Appears in 2 contracts

Sources: Loan and Security Agreement (Louisiana-Pacific Corp), Loan and Security Agreement (Louisiana-Pacific Corp)

Settlement Procedures. (a) In order to administer the Revolving Credit ~~Facility~~ Loan in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, so long as the ~~Administrative~~ conditions precedent set forth in Section 2.1 and Section 2.2, as the case may be, remain satisfied, Agent may, at in its ~~option~~discretion, subject to the ~~terms of this Section 3.6~~following paragraphs (b), (c) and (d), make available, on behalf of Lenders, the full amount of the Revolving ~~Loans~~ Credit Advances in an amount of up to $35,000,000 outstanding on any day (after application of payments received on such day) requested or ~~charged to any Borrower’s loan account(s) or otherwise to be advanced~~ deemed requested by ~~Lenders~~ Borrower pursuant to ~~the terms hereof~~Section 1.1(c) and Section 1.1(h), without ~~requirement of prior~~ notice to Lenders of the proposed Revolving ~~Loans (each such advance by the Administrative Agent, a “Settlement Advance”~~Credit Advance pursuant to Section 1.1(c). (b) ~~With respect to (i) all Swingline Loans and (ii) all~~ If Agent shall have made one or more Revolving ~~Loans made by the Administrative Agent~~ Credit Advances on behalf of Lenders as provided in this Section ~~3.6~~1.13(b), the amount of each Lender’s ~~Pro Rata~~ Proportionate Share of ~~such~~ the outstanding ~~Loans~~ Revolving Credit Advances (for purposes of this Section 1.13(b)) shall be computed ~~weekly,~~ weekly rather than daily and shall be adjusted upward or downward on the basis of the amount of the outstanding ~~Loans~~ Revolving Credit Advances as of 5:00 ~~p.m.~~ P.M. (New York City time) on the Business Day immediately preceding the date of each ~~settlement~~ computation; ~~provided~~ provided, that ~~the Administrative~~ Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. ~~The Administrative~~ Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding ~~Loans~~ Revolving Credit Advances for such period (such week or lesser period or periods being ~~hereinafter~~ hereafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Lender prior to 12:00 ~~noon,~~ Noon (New York City time) then such Lender shall make the ~~settlement transfer~~ transfers described in ~~this Section 3.6 by~~ the next succeeding sentence no later than ~~3:00 p.m.~~ 2:00 P.M. (New York City time) on the ~~same Business Day~~ day such summary statement was sent, and if such summary statement is sent by Agent and received by a Lender after 12:00 ~~noon~~Noon (New York City time), ~~then~~ such Lender shall make ~~the settlement transfer by not~~ such transfers no later than ~~3:00 p.m.~~ 2:00 P.M. (New York City time) on the next succeeding Business ~~Day following the date of receipt~~Day. If, ~~as of the end of~~ in any Settlement Period, the amount of a Lender’s ~~Pro Rata~~ Proportionate Share of the outstanding ~~Loans~~ Revolving Credit Advances is more than such Lender’s ~~Pro Rata~~ Proportionate Share of the outstanding ~~Loans as of the end of~~ Revolving Credit Advances for the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the next preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase~~. Alternatively~~; and on the other hand, if the amount of a Lender’s ~~(other than a Defaulting Lender) Pro Rata~~ Proportionate Share of the outstanding ~~Loans~~ Revolving Credit Advances in any Settlement Period is less than the amount of such Lender’s ~~Pro Rata~~ Proportionate Share of the outstanding ~~Loans~~ Revolving Credit Advances for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds ~~and effect such settlement~~ shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Lenders agrees to ▇m▇▇▇ its books and records at the end of each Settlement Period to show at all times the ~~dollar~~ Dollar amount of its ~~Pro Rata~~ Proportionate Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanRevolving Credit Advances. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving ~~Loans~~ Credit Advances by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to ~~this~~ Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares1.13(a). (d) If Because Agent, on behalf of Lenders, may be advancing or may be repaid Revolving Credit Advances prior to the ~~Administrative~~ time when Lenders will actually advance or be repaid Revolving Credit Advances, interest, Non-use Fees and Letter of Credit Fees with respect to the outstanding Revolving Credit Advances shall be allocated by Agent ~~is not funding~~ to each Lender (including Agent in its capacity as a ~~particular~~ Lender), and the amount of each Lender’s (including Agent’s in its capacity as a Lender) Proportionate Share shall be computed daily, in accordance with the amount of the outstanding Revolving ~~Loan~~ Credit Advances actually advanced by and repaid to each Lender (including Agent in its capacity as a Lender) on each day during each Settlement Period and shall accrue from and including the date such Revolving Credit Advances are advanced by Agent to but excluding the date such Revolving Credit Advances are repaid by Borrower in accordance with Section 1.2 or actually settled by the applicable Lender as described in this Section 1.13. On the second Business Day of each calendar month (an “Interest Settlement Date”), Agent will advise each Lender by telephone, telecopy or other form of written transmission of the ~~Administrative Borrower~~ amount of such Lender’s Proportionate Share of interest paid and Non-use Fees and Letter of Credit Fees paid for the benefit of ~~such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds~~ Lenders on the ~~date~~ Revolving Credit Loan as of such ~~Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume~~ Interest Settlement Date. Provided that ~~each~~ such Lender ~~will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise~~ has made ~~on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount~~ all payments required to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in it under this Agreement ~~or any of~~ and the other Loan Documents, Agent will pay to such Lender, by wire transfer to such Lender not later than 12:00 noon (New York time) on the ~~amount so advanced by~~ next Business Day following the ~~Administrative Agent to or~~ Interest Settlement Date, such Lender’s Proportionate Share of interest paid and Non-use Fees and Letter of Credit Fees paid for the benefit of ~~any Borrower shall, for all purposes hereof, be a~~ Lenders on the Revolving Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such noticeCredit Loan. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 2 contracts

Sources: Credit Agreement (Galyans Trading Co Inc), Credit Agreement (Dicks Sporting Goods Inc)

Appears in 2 contracts

Sources: Loan and Security Agreement (New York & Company, Inc.), Loan and Security Agreement (New York & Company, Inc.)

Appears in 2 contracts

Sources: Loan and Security Agreement (Franchise Group, Inc.), Loan and Security Agreement (Franchise Group, Inc.)

Appears in 1 contract

Sources: Loan and Security Agreement (Pemstar Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Allou Health & Beauty Care Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Lexington Precision Corp)

Settlement Procedures. (a) In order to administer the ~~Credit Facility~~ credit facility provided hereunder in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may~~, at its option~~, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to ~~any Borrower’s~~ Borrowers' loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without any requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving Loans made by ~~the Administrative~~ Agent on behalf of Revolving Loan Lenders as provided in this ~~Section 3.6~~Section, the amount of each Revolving Loan Lender’s 's Pro Rata Share of ~~such~~ the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Loans as of 5:00 p.m. Los Angeles time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ Agent shall deliver to each of the Revolving Loan Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Revolving Loan Lender prior to ~~12:00 noon~~2:00 p.m. Los Angeles time, then such Revolving Loan Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. ~~on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m.~~ Los Angeles time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s 's Pro Rata Share of the outstanding Revolving Loans is more than such Lender’s 's Pro Rata Share of the outstanding Revolving Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Lender’s 's Pro Rata Share of the outstanding Revolving Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Revolving Loan Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Revolving Loan Lenders agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Revolving Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the ~~Administrative~~ Agent on behalf of Revolving Loan Lenders may be advancing and/or may be repaid Revolving Loans prior to the time when Lenders will actually advance and/or be repaid such Revolving Loans, interest with respect to Revolving Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Revolving Loans actually advanced by and repaid to each Revolving Loan Lender and the ~~Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by ~~Borrowers~~ any Borrower or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~any Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative Agent~~ any Lender pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent ~~may, at its option,~~ may at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s 's disbursement of such ~~Revolving~~ Loan to any Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender's obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender's obligation to make a Loan hereunder. (d) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan to a Borrower ~~(or the Administrative Borrower for the benefit of such Borrower)~~ pursuant to ~~subsections (a) and (b) above~~ this Section on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s 's Pro Rata Share of the Revolving Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to ~~or for the benefit of such Borrower~~ Borrowers on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to ~~a Borrower~~ Borrowers and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the ~~Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest~~ interest rate provided for in Section 3.1 ~~applicable to Base Rate Loans~~hereof. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to ~~or for the benefit of~~ any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the Administrative Borrower~~ Borrowers of such failure and Borrowers shall immediately pay such corresponding amount to ~~the Administrative~~ Agent for its own account. A Lender who fails to pay Agent its Pro Rata Share of any Loans made available by the Agent on such Lender's behalf, or any Lender who fails to pay any other amount owing to Agent, is a "Defaulting Lender". Agent shall not be obligated to transfer to a Defaulting Lender any payments made by or on behalf of any Borrower or any Obligor to Agent for the Defaulting Lender's benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, re-lend to any Borrower the amount of all such payments received or retained by it for the account ~~within five (5) Business Days of the Administrative Borrower’s receipt~~ of such ~~notice~~Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a Lender and such Defaulting Lender's Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by any Borrower or any Obligor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (Rockford Corp)

Settlement Procedures. (a) ~~In order~~ On each Deposit Date during each Settlement Period during the Revolving Period, unless a Cure Period shall have occurred and be continuing, the Collection Agent shall instruct the Trustee by a Daily Report delivered to ~~administer~~ the ~~Credit Facility~~ Trustee by 2:00 p.m. (New York City time) to, and the Trustee shall, at such time and in the following order: (i) allocate Collections received since receipt of the last such Daily Report and held in the Concentration Account on such day, based on the Daily Report, either as Owner Collections or Seller Collections; (ii) out of such Owner Collections, allocate to, and hold in the Concentration Account, in trust for the Owners, the Trustee and the Collection Agent, an amount equal to the Yield/Fee Amount for such Deposit Date to the extent such amount has not been previously so allocated; (iii) deposit the remainder of such Owner Collections to the Seller's Account, provided that, if immediately following any such deposit such Deposit Date would be a Pool Non-compliance Date, the Trustee shall retain all such remaining Owner Collections in the Concentration Account to be applied pursuant to Section 2.05(b)(iii); and (iv) deposit to the Seller's Account the Seller Collections. On the Business Day immediately prior to each Settlement Date during the Revolving Period, unless a Cure Period shall have occurred and be continuing, the Collection Agent shall direct the Trustee in writing to deposit to the Trustee's Account the amounts allocated and held in trust as described in clause (ii) above; provided, however, that the portion of such deposit allocable to the Trustee's expenses shall only be in an ~~efficient manner and to minimize the transfer of funds between the Administrative Agent and Lenders, the Administrative Agent may, at its option, subject~~ amount equal to the ~~terms of this Section 3.6, make available, on behalf of Lenders,~~ expenses reimbursable under the ~~full amount of~~ Purchase Documents actually incurred by the ~~Revolving Loans requested~~ Trustee (as certified in reasonable detail to the Collection Agent in writing by the Trustee) during the current Interest Period or ~~charged~~ remaining unpaid with respect to any ~~Borrower’s loan account(s) or otherwise to be advanced~~ prior Interest Period. The Daily Report delivered by ~~Lenders pursuant~~ the Collection Agent to the ~~terms hereof, without requirement~~ Trustee on the first day of ~~prior notice to Lenders of~~ each Interest Period shall set forth the ~~proposed Revolving Loans (each~~ Yield/Fee Amount for such ~~advance by the Administrative Agent, a “~~Settlement ~~Advance”)~~Date. (b) ~~With respect~~ On each Deposit Date during each Settlement Period if and so long as a Cure Period shall have occurred and be continuing, the Collection Agent shall instruct the Trustee by a Daily Report delivered to the Trustee by 2:00 p.m. (New York City time) to, and the Trustee shall, at that time and in the following order: (i) ~~all Swingline Loans~~ allocate Collections received since receipt of the last such Daily Report and held in the Concentration Account on such day, based on the Daily Report, either as Owner Collections or Seller Collections; (ii) ~~all Revolving Loans made by~~ out of Owner Collections, allocate to, and hold in the ~~Administrative Agent on behalf of Lenders as provided~~ Concentration Account, in ~~this Section 3.6~~trust for the Owners, the Trustee and the Collection Agent, an amount equal to the Yield/Fee Amount for such date to the extent such amount has not been previously so allocated; (iii) deposit, out of ~~each Lender’s Pro Rata Share~~ the remainder of such ~~outstanding Loans~~ Owner Collections, to the Cure Account in an amount sufficient to make the Net Subject Receivables Balance equal or exceed the Required Net Subject Receivables Balance; (iv) deposit the remainder of such Owner Collections to the Seller's Account; provided that, if immediately following any such deposit such Deposit Date would be a Pool Non-compliance Date, the Trustee shall retain all such remaining Owner Collections in the Concentration Account to be ~~computed weekly, and shall be adjusted upward or downward on~~ applied pursuant to Section 2.05(b)(iii); and (v) deposit to the ~~basis of~~ Seller's Account the ~~amount of the outstanding Loans as of 5:00 p.m. on~~ Seller Collections. On the Business Day immediately ~~preceding~~ prior to each Settlement Date during a Cure Period, the date of each settlement computation; provided that the Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. The Administrative Collection Agent shall ~~deliver~~ direct the Trustee in writing to ~~each~~ deposit to the Trustee's Account the amounts allocated and held in trust as described in clause (iii) of the Lenders after the end of each week, or at such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”this Section 2.05(b). If the summary statement is sent by the Administrative Agent and received by a Lender prior to 12:00 noon, then such Lender shall make the settlement transfer described in this Section 3.6 by no later than 3:00 p.m. on the same On each Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m. on the next Business Day following the date of receipt. If, as of the end of any during each Settlement Period, if and so long as a Cure Period shall have occurred and be continuing, the ~~amount of a Lender’s Pro Rata Share of~~ Collection Agent shall direct the ~~outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but~~ Trustee in ~~no event later than the time set forth in the preceding sentence) transfer~~ writing to deposit to the ~~Administrative Agent by wire transfer~~ Trustee's Account the amounts allocated and held in ~~immediately available funds~~ trust as described in clause (ii) above; provided, however, that the ~~amount of the increase. Alternatively, if the amount of a Lender’s (other than a Defaulting Lender) Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount~~ portion of such ~~Lender’s Pro Rata Share of~~ deposit allocable to the outstanding Loans for the previous Settlement Period, the Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the Administrative Agent. The Administrative Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender Trustee's expenses shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to ~~its Pro Rata Share~~ the expenses reimbursable under the Purchase Documents actually incurred by the Trustee (as certified in reasonable detail to the Collection Agent in writing by the Trustee) during the current Interest Period or remaining unpaid with respect to any prior Interest Period. The Daily Report delivered by the Collection Agent to the Trustee on the first day of each Interest Period shall set forth the ~~aggregate amount of~~ Yield/Fee Amount for such ~~Loan~~Settlement Date. (c) To On each Deposit Date during the ~~extent that~~ Amortization Period, the ~~Administrative~~ Collection Agent ~~has made any such amounts available~~ shall instruct the Trustee by a Daily Report delivered to the Trustee by 2:00 p.m. (New York City time) to, and the ~~settlement~~ Trustee shall, at that time and in the following order: (i) allocate Collections received since receipt of the last such Daily Report and held in the Concentration Account, based on the Daily Report, either as Owner Collections or as Seller Collections; (ii) set aside and hold in the Concentration Account, in trust for the Owners, the Trustee and the Collection Agent, such Owner Collections; and (iii) deposit to the Seller's Account the Seller Collections. On the Business Day immediately prior to each Settlement Date during an Amortization Period, the Trustee shall deposit to the Trustee's Account (A) all amounts set aside as described ~~above shall not yet have occurred, upon repayment~~ in clause (ii) of ~~any Revolving Loans by a Borrower or with~~ this Section 2.05(c) and (B) the ~~collected proceeds~~ amount of Cure Funds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b), the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata SharesCure Account. (d) If On any Business Day during the ~~Administrative~~ Revolving Period, unless a Cure Period shall have occurred and be continuing, the Seller may instruct the Collection Agent ~~is not funding~~ to direct the Trustee (as set forth in the Daily Report) to deposit to the Trustee's Account all or a ~~particular Revolving Loan~~ portion of (A) the Collections otherwise to ~~a Borrower (or~~ be deposited into the ~~Administrative Borrower for the benefit of such Borrower)~~ Seller's Account pursuant to ~~subsections (a~~Sections 2.05(a)(iii) and (biv) ~~above on any day, but is requiring each Lender~~ and (B) the Yield/Fee Amount held in the Concentration Account pursuant to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume that each Lender will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such notice2.05(a)(ii). (e) ~~Nothing~~ On any Business Day during the Revolving Period, the Seller may instruct the Trustee by an Officer's Certificate (which may be a standing instruction) delivered to the Trustee by 2:00 p.m. (New York City time) to, and the Trustee shall, transfer to the Seller's Account Cure Funds, if any, held in ~~this Section 3.6~~ the Cure Account; provided that the Seller shall have delivered to the Trustee at the time of such request an Officer's Certificate stating that, after taking account of the requested withdrawal, the Net Subject Receivables Balance on such day is equal to or ~~elsewhere in this Agreement or~~ greater than the ~~other Loan Documents shall be deemed to require~~ Required Net Subject Receivables Balance and setting forth the ~~Administrative Agent to advance funds~~ calculation supporting such statement. (f) If on ~~behalf~~ any day the Outstanding Balance of any ~~Lender~~ Subject Receivable is either (~~including, without limitation, a Defaulting Lender~~i) ~~or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender~~ reduced as a result of any ~~default~~ defective, rejected or returned merchandise or services, any cash discount, or any adjustment by the Seller, Maxtor or any ~~Lender hereunder~~ Selling Affiliate or any Affiliate of any thereof, or (ii) reduced or canceled as a result of any dispute or claim, or any setoff in ~~fulfilling its Commitment~~respect of any dispute or claim, by the Obligor thereof against the Seller, Maxtor or any Selling Affiliate or any Affiliate of any thereof (whether such dispute or claim arises out of the same or a related transaction or an unrelated transaction), the Seller shall be deemed to have received on such day a Collection of such Receivable in the amount of such reduction or cancellation (unless such Seller shall be deemed to have received on such day a collection in full of such Subject Receivable pursuant to the succeeding sentence), and the Seller shall make the payment required to be made by it in connection with such deemed Collection on the day required under, and otherwise pursuant to, Section 5.01(h). If on any day any of the representations or warranties in Section 4. 01 (h) is violated with respect to any Subject Receivable, the Seller shall be deemed to have received on such day a Collection in full of such Subject Receivable and shall make the payment required to be made by it in connection with such deemed Collection on the day required under, and otherwise pursuant to, Section 5.01 (h). In the ~~event that a Lender is a Defaulting Lender~~case of each of the two preceding sentences, upon any actual payment in full by the Seller of any such Receivable, the ~~Administrative Agent~~ Seller shall be ~~entitled~~ deemed to ~~refrain~~ have repurchased (without recourse and without representation or warranty, express or implied) such Receivable and such Receivable shall cease to be a "Subject Receivable" for purposes of this Agreement (unless and until the Agent or any Owner is at any time required to return all or any portion of such payment for any reason). (g) Except as otherwise stated in this Section 2.05 or as otherwise required by law or the underlying contract or the applicable Credit and Collection Policy, all Collections received from ~~remitting settlement amounts~~ an Obligor of any Receivable shall be applied to Receivables then outstanding of such Obligor in the ~~Defaulting Lender~~ order of the age of such Receivables, starting with the oldest such Receivable unless such Obligor designated its payment for application to specific Receivables, and, ~~instead~~in any case, no later than ten Business Days after such payment shall ~~be entitled to elect to implement the provisions set forth in Section 3.9~~have been made by such Obligor.

Appears in 1 contract

Sources: Receivables Purchase and Sale Agreement (Maxtor Corp)

Appears in 1 contract

Sources: Loan and Security Agreement (Pep Boys Manny Moe & Jack)

Appears in 1 contract

Sources: Loan and Security Agreement (Delta Apparel, Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Anchor Glass Container Corp /New)

Appears in 1 contract

Sources: Loan and Security Agreement (Natrol Inc)

Settlement Procedures. (a) In order to administer the Revolving Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Revolving Lenders, ~~the Administrative~~ Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Revolving Lenders, the full amount of the Revolving Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Revolving Lenders pursuant to the terms hereof, without requirement of prior notice to Revolving Lenders of the proposed Revolving ~~Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving Loans made by ~~the Administrative~~ Agent on behalf of Revolving Lenders as provided in this ~~Section 3.6~~Section, the amount of each Revolving Lender’s Pro Rata Share of ~~such~~ the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Loans as of 5:00 p.m. Chicago time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ Agent shall deliver to each of the Revolving Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Revolving Lender prior to 12:00 ~~noon~~noon Chicago time, then such Revolving Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. Chicago time on the same Business Day and if received by a Revolving Lender after 12:00 ~~noon~~p.m. Chicago time, then such Revolving Lender shall make the settlement transfer by not later than 3:00 p.m. Chicago time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Revolving Lender’s Pro Rata Share of each of the outstanding Revolving Loans is more than such Revolving Lender’s Pro Rata Share of each of the outstanding Revolving Loans as of the end of the previous Settlement Period, then such Revolving Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Revolving Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of each of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Revolving Lender’s Pro Rata Share of each of the outstanding Revolving Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Revolving Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Revolving Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Agent and each Revolving Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Revolving Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Revolving Lender shall only be entitled to receive interest on its Pro Rata Share of the Revolving Loans to the extent such Revolving Loans have been funded by such Revolving Lender. Because the ~~Administrative~~ Agent on behalf of Revolving Lenders may be advancing and/or may be repaid Revolving Loans prior to the time when Revolving Lenders will actually advance and/or be repaid such Revolving Loans, interest with respect to Revolving Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Revolving Loans actually advanced by and repaid to each Revolving Lender and the ~~Administrative~~ Agent and shall accrue from and including the date such Revolving Loans are so advanced to but excluding the date such Revolving Loans are either repaid by Borrowers or actually settled with the applicable Revolving Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving Loans by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent may, at its option, at any time require each Revolving Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to ~~the Administrative~~ Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Revolving Lenders simultaneously and proportionately to their Pro Rata Shares. No Revolving Lender shall be responsible for any default by any other Revolving Lender in the other Lender’s obligation to make a Revolving Loan requested hereunder nor shall the Revolving Commitment of any Revolving Lender be increased or decreased as a result of the default by any other Revolving Lender in the other Revolving Lender’s obligation to make a Revolving Loan hereunder. (d) If ~~the Administrative~~ Agent is not funding a particular Revolving Loan to a Borrower (or ~~the~~ Administrative Borrower for the benefit of such Borrower) pursuant to ~~subsections (a) and (b) above~~ this Section on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each Revolving Lender will make available to ~~the Administrative~~ Agent such Revolving Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Revolving Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Revolving Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of ~~the Administrative~~ Agent’s demand, at the highest ~~interest rate~~ Interest Rate provided for in Section 3.1 hereof applicable to ~~Base~~ Prime Rate Loans consisting of Revolving Loans. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Revolving Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the~~ Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to ~~the Administrative~~ Agent for its own account within five (5) Business Days of ~~the Administrative Borrower~~Parent’s receipt of such notice. A Revolving Lender who fails to pay Agent its Pro Rata Share of any Revolving Loans made available by the Agent on such Revolving Lender’s behalf, or any Revolving Lender who fails to pay any other amount owing by it to Agent, is a “Defaulting Lender”. Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, relend to a Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Lender” and such Revolving Lender’s Revolving Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Commitment of any Revolving Lender, or relieve or excuse the performance by any Borrower or Obligor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Revolving Lender from its obligation to fulfill its Revolving Commitment hereunder or to prejudice any rights that any Borrower may have against any Revolving Lender as a result of any default by any Revolving Lender hereunder in fulfilling its Revolving Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (Remy International, Inc.)

Settlement Procedures. (a) In Notwithstanding any other provision of this Agreement, and in order to administer the Credit Facility in an efficient manner and to ~~minimize~~ reduce the ~~transfer~~ number of ~~funds~~ fund transfers between Lenders and Agent, Borrowers, Lenders and Agent agree that Agent may (but shall not be obligated to), and Borrowers and Lenders hereby irrevocably authorize the ~~Administrative~~ Agent ~~and~~ to, fund, on behalf of the Lenders, ~~the Administrative Agent may, at its option~~Loans pursuant to Sections 3.1 and 3.3 hereof, subject to the ~~terms of~~ procedures for settlement set forth in this Section ~~3.6~~3.13; provided, that, (i) other than to fund Loans to make ~~available, on behalf~~ payments to the issuer of ~~Lenders, the full amount~~ any of the ~~Revolving~~ Letter of Credit Accommodations or for costs and expenses as provided for herein, Agent shall in no event fund such Loans ~~requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by~~ if the Agent shall have received written notice from the Majority Lenders ~~pursuant~~ on the Business Day prior to the ~~terms hereof, without requirement of prior notice to Lenders~~ day of the proposed ~~Revolving Loans~~ Loan that one or more of the applicable conditions precedent contained in Section 4 will not be satisfied on the day of the proposed Loan, and (~~each such advance by~~ ii) Agent shall not otherwise be required to determine that, or take notice whether, the ~~Administrative Agent, a “Settlement Advance”)~~applicable conditions precedent in Section 4 have been satisfied. (b) With respect to (iall periods for which the Agent has funded Loans pursuant to Section 3.13(a) ~~all Swingline Loans and (ii) all Revolving Loans made by the Administrative Agent on behalf of Lenders as provided in this Section 3.6~~above, the amount of each Lender’s Pro Rata Share ~~of such~~ in the outstanding Loans and Letter of Credit Accommodations shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of ~~5:00 p.m.~~ the close of business on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. ~~The Administrative~~ Agent shall deliver to each of ~~the~~ Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Lender prior to 12:00 ~~noon,~~ noon (New York City time) then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. (New York City time) on the ~~same Business Day~~ day such summary statement was sent, and if such summary statement is sent by Agent and received by a Lender after 12:00 ~~noon~~noon (New York City time), ~~then~~ such Lender shall make ~~the~~ such settlement transfer by ~~not~~ no later than ~~3:00~~ 2:00 p.m. (New York City time) on the next Business Day following the date of ~~receipt~~the receipt of such summary statement. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. ~~Alternatively, if~~ If the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Lenders agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans ~~to the extent such Loans~~ which have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such Loan. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrowers, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this Section ~~3.6~~3.13. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent ~~may, at its option,~~ may at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s disbursement of such ~~Revolving~~ Loan to or for the benefit of Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder. (d) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan ~~to a Borrower (or the Administrative Borrower for the benefit of such Borrower)~~ pursuant to ~~subsections (a) and (b~~Section 3.13(a) above on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to ~~or for the benefit of such Borrower~~ Borrowers on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate LoansInterest Rate. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to ~~or for the benefit of any~~ a Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the Administrative~~ such Borrower of such failure and ~~Borrowers~~ such Borrower shall immediately pay such corresponding amount to ~~the Administrative~~ Agent for its own ~~account within five (5) Business Days of the Administrative Borrower’s receipt of such notice~~account. (e) Nothing in this Section ~~3.6~~ 3.13 or ~~elsewhere~~ otherwise in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that ~~any Borrower~~ Agent or Borrowers may have against any Lender as a result of any default by ~~any~~ such Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9hereunder.

Appears in 1 contract

Sources: Loan and Security Agreement (Doe Run Resources Corp)

Appears in 1 contract

Sources: Loan and Security Agreement (Vs Direct Inc.)

Appears in 1 contract

Sources: Loan and Security Agreement (Jazz Technologies, Inc.)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, including the Swing Line Lender, the full amount of the Revolving Loans or Swing Line Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed Revolving ~~Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving Loans made by ~~the Administrative~~ Agent on behalf of ~~Lenders as provided in this Section 3.6~~Lenders, the amount of each Lender’s Pro Rata Share of ~~such~~ the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Loans as of 5:00 p.m. New York City time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ With respect to Swing Line Loans made by Swing Line Lender or Agent on behalf of Swing Line Lender, Swing Line Lender (or Agent on behalf of Swing Line Lender) shall settle on the Swing Line Loans on a weekly basis or such other more frequent basis as Agent may from time to time determine. Agent (or Swing Line Lender as to Swing Line Loans) shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent (or Swing Line Lender as to Swing Line Loans) shall determine, a summary statement of the amount of outstanding Loans (whether Revolving Loans, Swing Line Loans or both, as applicable) for such period (such week or ~~lesser~~ other period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by Agent (or Swing Line Lender in the ~~Administrative Agent~~ case of Swing Line Loans) and received by a Lender prior to 12:00 ~~noon~~p.m. New York City time, then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. New York City time on the same Business Day and if received by a Lender after 12:00 ~~noon~~p.m. New York City time, then such Lender shall make the settlement transfer by not later than 3:00 p.m. New York City time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Revolving Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. Each Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to Swing Line Lender (or upon its request to Agent) by wire transfer in immediately available funds the amount of such Lender’s Pro Rata Share of the outstanding Swing Line Loans as set forth in the summary statement provided to such Lender as provided above. Amounts transferred to Swing Line Lender (or Agent as the case may be) in respect to a settlement of Swing Line Loans shall be applied to the payment of the Swing Line Loans and shall constitute Revolving Loans of such Lenders. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by Agent and may occur at any time an Event of Default exists or has occurred and is continuing and whether or not the ~~Administrative Agent~~conditions set forth in Section 4.2 are satisfied (except if there is an Event of Default under Section 10.1(g) and 10.1(h), in which case the funds shall be in respect of each Lender’s participation). ~~The Administrative~~ Agent and each Lender agrees to ▇m▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the ~~Administrative~~ Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the ~~Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent may, at its option, at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s disbursement of such ~~Revolving~~ Loan to a Borrower. In such event, Agent shall notify each Lender promptly after Agent’s receipt of the request for the Loans from a Borrower (or Administrative Borrower on behalf of such Borrower) or any deemed request hereunder and each Lender shall provide its Pro Rata Share of such requested Loan to the account specified by Agent in immediately available funds not later than 2:00 p.m. New York City time on the requested funding date, so that all ~~Revolving~~ such Loans ~~under this Agreement~~ shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) If Upon the ~~Administrative~~ making of any Loan by Agent ~~is not funding a particular Revolving Loan~~ as provided herein, without further action by any party hereto, each Lender shall be deemed to ~~a Borrower (~~have irrevocably and unconditionally purchased and received from Agent, without recourse or warranty, an undivided interest and participation to the ~~Administrative Borrower for the benefit~~ extent of such ~~Borrower~~Lender’s Pro Rata Share in such Loan. To the extent that there is no settlement in accordance with the terms hereof, Agent may at any time require the Lenders to fund their participations. From and after the date, if any, on which any Lender has funded its participation in any such Loan, Agent shall promptly distribute to such Lender, such Lender’s Pro Rata Share of all payments of principal and interest received by Agent in respect of such Loan. (e) As to any Loan funded by Agent on behalf of a Lender (including Swing Line Lender) whether pursuant to ~~subsections (a~~Sections 6.10(a), 6.10(b) ~~and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c~~or 6.10(c) above, ~~the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day ~~and~~ in the ~~Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount~~ case of Loans funded pursuant to ~~be made available to~~ Section 6.10(c) above or ~~for~~ otherwise on the ~~benefit of such Borrower on such day~~applicable settlement date. If ~~the Administrative~~ Agent makes ~~such corresponding amount~~ amounts available to a Borrower and such corresponding ~~amount is~~ amounts are not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. New York City time on that day by each of the three leading brokers of Federal funds transactions in New York selected by Agent) and if such amounts are not paid within three (3) days of ~~the Administrative~~ Agent’s demand, at the highest ~~interest rate~~ Interest Rate provided for in Section 3.1 hereof applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. . (f) Upon any ~~such~~ failure by a Lender to pay Agent (or Swing Line Lender) pursuant to the ~~Administrative Agent~~settlement described in Section 6.10(b) above or to pay Agent pursuant to Section 6.10(c), ~~the Administrative~~ 6.10(d) or Section 6.10(e), Agent shall promptly thereafter notify ~~the~~ Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to ~~the Administrative~~ Agent for its own account within five (5) Business Days of ~~the~~ Administrative Borrower’s receipt of such notice. (eg) Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (0). So long as there is a Defaulting Lender, the maximum amount of the Loans and Letters of Credit shall not exceed the aggregate amount of the Commitments of the Lenders that are not Defaulting Lenders plus the Pro Rata Share of the Defaulting Lender (determined immediately prior to its being a Defaulting Lender) of the Loans and Letters of Credit outstanding as of the date that the Defaulting Lender has become a Defaulting Lender. At any time that there is a Defaulting Lender, payments received for application to the Obligations payable to Lenders in accordance with the terms of this Agreement shall be distributed to Lenders based on their Pro Rata Shares calculated after giving effect to the reduction of the Defaulting Lender’s Commitment to zero as provided herein or at Agent’s option, Agent may instead receive and retain such amounts that would be otherwise attributable to the Pro Rata Share of a Defaulting Lender (which for such purpose shall be such Pro Rata Share as in effect immediately prior to its being a Defaulting Lender). To the extent that Agent elects to receive and retain such amounts, Agent may hold such amounts (which shall not accrue interest) and, in its reasonable discretion, relend such amounts to a Borrower. To the extent that Agent exercises its option to relend such amounts, such amounts shall be treated as Revolving Loans for the account of Agent in addition to the Revolving Loans that are made by the Lenders other than a Defaulting Lender based on their respective Pro Rata Shares as calculated after giving effect to the reduction of such Defaulting Lender’s Commitment to zero (0) as provided herein but shall be repaid in the same order of priority as the principal amount of the Loans on a pro rata basis for purposes of Section 6.4 hereof. Agent shall determine whether any Revolving Loans requested shall be made from relending such amounts or from Revolving Loans from the Lenders (other than a Defaulting Lender) and any allocation of requested Revolving Loans between them. The rights of a Defaulting Lender shall be limited as provided herein until such time as the Defaulting Lender has made all payments to Agent of the amounts that it had failed to pay causing it to become a Defaulting Lender and such Lender is otherwise in compliance with the terms of this Agreement (including making any payments as it would have been required to make as a Lender during the period that it was a Defaulting Lender other than in respect of the principal amount of Revolving Loans, which payments as to the principal amount of Revolving Loans shall be made based on the outstanding balance thereof on the date of the cure by Defaulting Lender or at such other time thereafter as Agent may specify) or has otherwise provided evidence in form and substance satisfactory to Agent that such Defaulting Lender will be able to fund its Pro Rata Share (as in effect immediately prior to its being a Defaulting Lender) in accordance with the terms hereof. Upon the cure by Defaulting Lender of the event that is the basis for it to be a Defaulting Lender by making such payment or payments and such Lender otherwise being in compliance with the terms hereof, such Lender shall cease to be a Defaulting Lender and shall only be entitled to payment of interest accrued during the period that such Lender was a Defaulting Lender to the extent previously received and retained by Agent from or for the account of Borrowers on the funds constituting Loans funded by such Lender prior to the date of it being a Defaulting Lender (and not previously paid to such Lender) and shall otherwise, on and after such cure, make Loans and settle in respect of the Loans and other Obligations in accordance with the terms hereof. The existence of a Defaulting Lender and the operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by any Borrower or Guarantor of its duties and obligations hereunder (including, but not limited to, the obligation of such Borrower or Guarantor to make any payments hereunder, whether in respect of Loans by a Defaulting Lender or otherwise). (h) Notwithstanding anything to the contrary contained in this Agreement, in the event that there is a Defaulting Lender, if there are any Letters of Credit outstanding, within three (3) Business Days after the written request of the applicable Issuing Bank, Borrowers shall pay to Agent an amount equal to the Pro Rata Share of the Defaulting Lender (calculated as in effect immediately prior to such Lender becoming a Defaulting Lender) of the Letter of Credit Obligations then outstanding to be held by Agent on terms and conditions satisfactory to Agent and Issuing Bank as cash collateral for the Obligations and for so long as there is a Defaulting Lender, Issuing Bank shall not be required to issue any Letter of Credit, or increase or extend or otherwise amend any Letter of Credit, unless upon the request of Issuing Bank, Agent has cash collateral from Borrowers in an amount equal to the Pro Rata Share of the Defaulting Lender (calculated as in effect immediately prior to such Lender becoming a Defaulting Lender) of the Letter of Credit Obligations outstanding after giving effect to any such requested Letter of Credit (or increase, extension or other amendment) to be held by Agent on its behalf on terms and conditions satisfactory to Agent and Issuing Bank or there are other arrangements reasonably satisfactory to Issuing Bank with respect to the participation in Letters of Credit by such Defaulting Lender. Such cash collateral shall be applied first to the Letter of Credit Obligations before application to any other Obligations, notwithstanding anything to the contrary contained in Section 6.4 hereof. (i) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against ~~any~~ a Lender as a result of any default by ~~any~~ such Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (Charming Shoppes Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Kirklands Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Latrobe Specialty Metals, Inc.)

Appears in 1 contract

Sources: Loan and Security Agreement (Hancock Fabrics Inc)

Settlement Procedures. (a) In order to administer the ~~Credit Facility~~ financing facility under this Agreement in an efficient manner and to minimize the transfer of funds between the Administrative Agent and the Revolving A Lenders, the Administrative Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of the Revolving A Lenders, the full amount of the Revolving A Loans requested or charged to ~~any Borrower’s loan account(s~~the Borrowers' Loan Account(s) or otherwise to be advanced by the Revolving A Lenders pursuant to the terms hereof, without requirement of prior notice to the Revolving A Lenders of the proposed Revolving ~~Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~A Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving A Loans made by the Administrative Agent on behalf of the Revolving A Lenders as provided in this ~~Section 3.6~~Section, the amount of each Revolving A Lender’s 's Pro Rata Share of ~~such~~ the outstanding Revolving A Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving A Loans as of 5:00 p.m. New York time on the Business Day immediately preceding the date of each settlement computation; ~~provided that~~ provided, that, the Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. The Administrative Agent shall deliver to each of the Revolving A Lenders after the end of each week, or at such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding Revolving A Loans for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by the Administrative Agent and received by a Revolving A Lender prior to 12:00 ~~noon~~noon New York time, then such Revolving A Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. New York time on the same Business Day and if received by a Revolving A Lender after 12:00 ~~noon~~noon New York time, then such Revolving A Lender shall make the settlement transfer by not later than 3:00 p.m. New York time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Revolving A Lender’s 's Pro Rata Share of the outstanding Revolving A Loans is more than such Revolving A Lender’s 's Pro Rata Share of the outstanding Revolving A Loans as of the end of the previous Settlement Period, then such Revolving A Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to the Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Revolving A Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Revolving A Loans in any Settlement Period is less than the amount of such Revolving A Lender’s 's Pro Rata Share of the outstanding Revolving A Loans for the previous Settlement Period, the Administrative Agent shall forthwith transfer to such Revolving A Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Revolving A Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the Administrative Agent. The Administrative Agent and each Revolving A Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Revolving A Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Revolving A Lender shall only be entitled to receive interest on its Pro Rata Share of the Revolving A Loans to the extent such Revolving A Loans have been funded by such Revolving A Lender. Because the Administrative Agent on behalf of Revolving A Lenders may be advancing and/or may be repaid Revolving A Loans prior to the time when such Revolving A Lenders will actually ~~advance~~ make Revolving A Loans and/or be repaid such Revolving A Loans, interest with respect to Revolving A Loans shall be allocated by the Administrative Agent in accordance with the amount of Revolving A Loans actually advanced by and repaid to each Revolving A Lender and the Administrative Agent and shall accrue from and including the date such Revolving A Loans are so advanced to but excluding the date such Revolving A Loans are either repaid by the Borrowers or actually settled with the applicable Revolving A Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that the Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving A Loans by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Revolving A Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving ~~Loan~~A Loans, prior to the Administrative Agent’s 's disbursement of such Revolving ~~Loan~~ A Loans to such Borrower. In such event, all Revolving A Loans ~~under this Agreement~~ shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Revolving A Lender shall be responsible for any default by any other Revolving A Lender in the other Revolving A Lender's obligation to make any Revolving A Loans requested hereunder nor shall the Revolving A Credit Commitment of any Revolving A Lender be increased or decreased as a result of the default by any other Revolving A Lender in the other Revolving A Lender's obligation to make any Revolving A Loans hereunder. (d) If the Administrative Agent is not funding a particular Revolving A Loan to ~~a Borrower~~ the Borrowers (or to the Administrative Borrower for the benefit of such ~~Borrower~~Borrowers) pursuant to ~~subsections (a) and (b) above~~ this Section on any day~~, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above~~, the Administrative Agent may assume that each Revolving A Lender will make available to the Administrative Agent such Revolving A Lender’s 's Pro Rata Share of the Revolving A Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such ~~Borrower~~ Borrowers on such day. If the Administrative Agent makes such corresponding amount available to ~~a Borrower~~ the Borrowers and such corresponding amount is not in fact made available to the Administrative Agent by such Revolving A Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Revolving A Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s 's demand, at the ~~highest~~ interest rate ~~provided for in Section 3.1~~ then applicable to ~~Base Rate~~ Revolving A Loans. During the period in which such Revolving A Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount of the Revolving A Loans so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be deemed a Revolving A Loan made by the Administrative Agent for its own account. Upon any such failure by a Revolving A Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and the Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s 's receipt of such notice. A Revolving A Lender who fails to pay the Administrative Agent its Pro Rata Share of any Revolving A Loans made available by the Administrative Agent on such Revolving A Lender's behalf, or any Revolving A Lender who fails to pay any other amount owing by it to the Administrative Agent, is a "Defaulting Lender". The Administrative Agent shall not be obligated to transfer to a Defaulting Lender any payments received by the Administrative Agent for the Defaulting Lender's benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Lender shall instead be paid to, or retained by, the Administrative Agent. The Administrative Agent may hold and, in its discretion, relend to a Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Loan Documents, and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Revolving A Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Revolving A Credit Commitment of any Revolving A Lender, or relieve or excuse the performance by any Loan Party of its duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other Loan ~~Documents~~ Documents, shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that ~~any Borrower~~ the Borrowers may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Financing Agreement (Milacron Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Rouge Industries Inc)

Settlement Procedures. (a) ~~In order~~ On each Deposit Date during each Fixed Period during the Revolving Period, unless a Cure Period shall have occurred and be continuing, the Collection Agent shall instruct the Trustee in a Daily Report delivered to ~~administer~~ the ~~Credit Facility~~ Trustee by 12:00 noon (New York City time) to, and the Trustee shall, at such time and in the following order: (i) [Intentionally Omitted] (ii) out of the related Collections, allocate to, and hold in the Trustee's Account, in trust for the Beneficiaries and the Collection Agent, an amount equal to the sum of (x) the Yield/Fee Amount for each Fixed Period commencing on or before such Deposit Date, plus (y) during the Term Period for any Group, the Excess Interest accrued through such Deposit Date in respect of all Cash Secured Advances, in each case to the extent the same has not been previously so allocated; and (iii) deposit to the Borrower's Account the remainder of such Collections; provided, however, that the portion of the amounts allocable to the Trustee's expenses and held in the Trustee's Account shall only be in an ~~efficient manner~~ amount equal to the unpaid expenses and disbursements owed or reimbursable under the Transaction Documents actually incurred by the Trustee (as certified in reasonable detail to ~~minimize~~ the ~~transfer~~ Collection Agent in writing by the Trustee) during the Fixed Period ending on the last day of ~~funds between~~ the ~~Administrative~~ most recent Month or remaining unpaid with respect to any prior Fixed Period. The Daily Report delivered by the Collection Agent to the Trustee on the first day of each Fixed Period shall set forth the Yield/Fee Amount for such Fixed Period and ~~Lenders~~during the Term Period for any Group, the Administrative Agent may, at its option, subject to the terms of this Section 3.6, make available, on behalf of Lenders, the full amount of the Revolving Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed Revolving Loans (each estimated Excess Interest for such ~~advance by the Administrative Agent, a “Settlement Advance”)~~Fixed Period. (b) ~~With respect~~ On each Deposit Date during each Fixed Period if and so long as a Cure Period shall have occurred and be continuing, the Collection Agent shall instruct the Trustee by a Daily Report delivered to the Trustee by 12:00 noon (New York City time) to, and the Trustee shall, at that time and in the following order: (i) ~~all Swingline Loans and~~ [Intentionally Omitted] (ii) ~~all Revolving Loans made by~~ out of the ~~Administrative Agent~~ related Collections, allocate to, and hold in the Trustee's Account, in trust for the Beneficiaries and the Collection Agent, an amount equal to the sum of (x) the Yield/Fee Amount for each Fixed Period commencing on ~~behalf of Lenders as provided in this Section 3.6~~or before such Deposit Date, plus (y) during the Term Period for any Group, the ~~amount~~ Excess Interest accrued through such Deposit Date in respect of all Cash Secured Advances, in each ~~Lender’s Pro Rata Share~~ case to the extent the same has not been previously so allocated; (iii) deposit, out of the remainder of such ~~outstanding Loans shall be computed weekly~~Collections, ~~and shall be adjusted upward or downward on~~ to the ~~basis of the~~ Cure Account an amount of the outstanding Loans as of 5:00 p.m. on the Business Day immediately preceding the date of each settlement computation; provided that the Administrative Agent retains the absolute right at any time or from time to time sufficient to make the ~~above described adjustments at intervals more frequent than weekly. The Administrative Agent shall deliver~~ Facility Principal (less an amount equal to ~~each~~ the Cure Funds then in the Cure Account) equal the Borrowing Base; and (iv) deposit to the Borrower's Account the remainder of such Collections; provided, however, that the portion of the ~~Lenders after~~ amounts allocable to the end of each week, or at such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by the Administrative Agent Trustee's expenses and received by a Lender prior to 12:00 noon, then such Lender shall make the settlement transfer described in this Section 3.6 by no later than 3:00 p.m. on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m. on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth held in the preceding sentence) transfer to the Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s (other than a Defaulting Lender) Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, the Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the Administrative Agent. The Administrative Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender Trustee's Account shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to ~~its Pro Rata Share~~ the unpaid expenses and disbursements owed or reimbursable under the Transaction Documents actually incurred by the Trustee (as certified to the Collection Agent in writing by the Trustee) during the Fixed Period ending on the last day of the ~~aggregate amount~~ most recent Month or remaining unpaid with respect to any prior Fixed Period. The Daily Report delivered by the Collection Agent to the Trustee on the first day of each Fixed Period shall set forth the Yield/Fee Amount for such ~~Loan~~Fixed Period and during the Term Period for any Group, the estimated Excess Interest for such Fixed Period. (c) On each Deposit Date during the Amortization Period, the Collection Agent shall instruct the Trustee by a Daily Report delivered to the Trustee by 12:00 noon (New York City time) to, and the Trustee shall, at that time and in the following order: (i) [Intentionally Omitted] (ii) set aside and hold in the Trustee's Account, in trust for the Beneficiaries and the Collection Agent, all of the relevant Collections until payment in full of the Obligations; and (iii) deposit to the Borrower's Account the remainder of such Collections. (d) On any Business Day during the Revolving Period, unless a Cure Period shall have occurred and be continuing, the Borrower may instruct the Collection Agent to direct the Trustee (as set forth in the Daily Report) to hold in the Trustee's Account all or a portion of the Collections otherwise to be deposited into the Borrower's Account pursuant to Section 2.04(a)(iii). (e) On any Business Day during the Revolving Period, the Borrower may instruct the Trustee by an officer's certificate delivered to the Trustee by 12:00 noon (New York City time) to, and the Trustee shall transfer to the Borrower's Account Cure Funds, if any, held in the Cure Account; provided that the officer's certificate delivered by the Seller to the Trustee at the time of such request shall state that, after taking account of such requested withdrawal, the Borrowing Base on such day is equal to or greater than the Facility Principal (less an amount equal to the Cure Funds then in the Cure Account) and shall set forth the calculation supporting such statement. Further, upon at least two Business Days' prior notice to the Investor Agents and the Trustee, the Borrower may, on any Business Day during the Revolving Period (but, in no event more than once in any calendar week after taking into consideration any payment made pursuant to the first clause of Section 2.04A(a)(iv)), instruct the Trustee by an officer's certificate delivered to the Trustee by 12:00 noon (New York City time) to distribute Cure Funds in the Cure Account, and the Trustee shall transfer from the Cure Account to the Investor Agent's Accounts for the ratable payment of the Facility Principal to the relevant Investors and Banks, the amount set forth in such certificate. (f) For the purposes of this Section 2.04: (i) if on any day any Receivable or any Participated Receivable becomes (in whole or in part) a Diluted Receivable, the Borrower shall be deemed to have received on such day a Collection of such Receivable or Participated Receivable in the amount of such Diluted Receivable and the amount of such deemed Collection shall be allocated in accordance with Section 2.04(a), (b) or (c), as applicable; (ii) if on any day any of the representations or warranties contained in Section 4.01(h) is no longer true with respect to any Receivable or any Participated Receivable, the Borrower shall be deemed to have received on such day a Collection of such Receivable or Participated Receivable in full and the amount of such deemed Collection shall be allocated in accordance with Section 2.04(a), (b) or (c), as applicable; (iii) except as provided in subsection (i) or (ii) of this Section 2.04(f), or as otherwise required by applicable law or the relevant Contract, all Collections received from an Obligor of any Receivables or any Participated Receivable shall be applied to the Receivables or Participated Receivable of such Obligor in the order of the age of such Receivables or Participated Receivable, starting with the oldest such Receivable, unless such Obligor designates its payment for application to specific Receivables or Participated Receivable; and (iv) if and to the extent the Program Agent or any of the Investor Agents, the Investors or the Banks shall be required for any reason to pay over to an Obligor any amount received on its behalf hereunder, such amount shall be deemed not to have been so received but rather to have been retained by the Borrower and, accordingly, the Program Agent or such Investor Agent, the Investors or the Banks, as the case may be, shall have a claim against the Borrower for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof. (g) To the extent that the ~~Administrative~~ amounts deposited to the Trustee's Account with respect to any Fixed Period are insufficient to pay all the accrued but unpaid Yield, Fees, Excess Interest, Trustee's Fee, Trustee's expenses and (if payable to a Collection Agent ~~has made any~~ other than an Originator or one of its Affiliates) Collection Agent Fee, the Borrower shall be obligated to pay to the Investor Agents and/or Program Agent, as the case may be, on the last day of such ~~amounts available~~ Fixed Period, for the account of the Investors, the Banks, the Investor Agents and the ~~settlement described above shall not yet have occurred~~Program Agent and the Trustee (and the Collection Agent, ~~upon repayment of any Revolving Loans by a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b~~if applicable), the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior an amount equal to the ~~Administrative Agent’s disbursement~~ balance of such ~~Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made~~ accrued and unpaid amounts by the Lenders simultaneously and proportionately to their Pro Rata Shares. (d) If the Administrative Agent is not funding a particular Revolving Loan to a Borrower (or the Administrative Borrower for the benefit deposit of such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume that each Lender will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by the Administrative Agent for its own accountTrustee's Account. ~~Upon any~~ The Trustee shall distribute such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such notice. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section ~~3.9~~2.04A(a) or (b), as applicable. (h) Within one Business Day after the end of each Fixed Period in respect of which Yield is computed by reference to the Investor Rate, each Investor Agent shall furnish the Borrower and the Collection Agent with an invoice setting forth the amount of the accrued and unpaid Yield and Fees for such Fixed Period with respect to the unpaid Advances held by the Investors and the Banks in such Investor Agent's Group.

Appears in 1 contract

Sources: Receivables Financing Agreement (Rite Aid Corp)

Settlement Procedures. (a) In Notwithstanding any other provision of this Agreement, and in order to administer the Credit Facility in an efficient manner and to ~~minimize~~ reduce the ~~transfer~~ number of ~~funds~~ fund transfers between Lenders and Agent, Borrower, Lenders and Agent agree that Agent may (but shall not be obligated to), and Borrower and Lenders hereby irrevocably authorize the ~~Administrative~~ Agent ~~and~~ to, fund, on behalf of the Lenders, ~~the Administrative Agent may, at its option~~Loans pursuant to Section 3.1 and Letter of Credit Accommodations pursuant to Section 3.2, subject to the ~~terms of~~ procedures for settlement set forth in this Section ~~3.6~~3.12; provided, that, (i) other than to fund Revolving Loans to make ~~available, on behalf~~ payments to the issuer of ~~Lenders, the full amount~~ any of the ~~Revolving~~ Letter of Credit Accommodations or for costs and expenses as provided for herein, Agent shall in no event fund such Loans ~~requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by~~ if the Agent shall have received written notice from the Majority Lenders ~~pursuant~~ on the Business Day prior to the ~~terms hereof, without requirement of prior notice to Lenders~~ day of the proposed ~~Revolving Loans~~ Loan that one or more of the conditions precedent contained in Section 4.2 will not be satisfied on the day of the proposed Loan, and (~~each such advance by~~ ii) Agent shall not otherwise be required to determine that the ~~Administrative Agent, a “Settlement Advance”)~~conditions precedent in Section 4.2 have been satisfied. (b) With respect to (iall periods for which the Agent has funded Loans pursuant to Section 3.12(a) ~~all Swingline Loans and (ii) all Revolving Loans made by the Administrative Agent on behalf of Lenders as provided in this Section 3.6~~above, the amount of each Lender’s 's Pro Rata Share ~~of such~~ in the outstanding Loans and Letter of Credit Accommodations shall be computed weekly, and shall be adjusted upward or downward on the basis of the average amount of the outstanding Loans ~~as of 5:00 p.m. on~~ for the Business ~~Day~~ Days of the week immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. ~~The Administrative~~ Agent shall deliver to each of ~~the~~ Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Lender prior to 12:00 ~~noon,~~ noon (New York City time) then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. (New York City time) on the ~~same Business Day~~ day such summary statement was sent, and if such summary statement is sent by Agent and received by a Lender after 12:00 ~~noon~~noon (New York City time), ~~then~~ such Lender shall make ~~the~~ such settlement transfer by ~~not~~ no later than ~~3:00~~ 2:00 p.m. (New York City time) on the next Business Day following the date of ~~receipt~~the receipt of such summary statement. If, as of the end of any Settlement Period, the amount of a Lender’s 's Pro Rata Share of the outstanding Loans is more than such Lender’s 's Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. ~~Alternatively, if~~ If the amount of a Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s 's Pro Rata Share of the outstanding Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Lenders agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans ~~to the extent such Loans~~ which have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such Loan. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this Section ~~3.6~~3.12. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent ~~may, at its option,~~ may at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s 's disbursement of such ~~Revolving~~ Loan to or for the benefit of Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender's obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender's obligation to make a Loan requested hereunder. (d) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan ~~to a Borrower (or the Administrative Borrower for the benefit of such Borrower)~~ pursuant to ~~subsections (a) and (b~~Section 3.12(a) above on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s 's Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to ~~or for the benefit of such~~ Borrower on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate LoansInterest Rate. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to ~~or for the benefit of any~~ Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such notice. (e) Nothing in this Section ~~3.6~~ 3.12 or ~~elsewhere~~ otherwise in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that ~~any~~ Agent or Borrower may have against any Lender as a result of any default by ~~any~~ such Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9hereunder.

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (Salant Corp)

Appears in 1 contract

Sources: Loan and Security Agreement (Kirklands Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Payless Cashways Inc)

Settlement Procedures. (a) In order to administer the ~~Credit Facility~~ credit facility provided hereunder in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may~~, at its option~~, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to ~~any Borrower’s~~ Borrowers’ loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without any requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving Loans made by ~~the Administrative~~ Agent on behalf of Revolving Loan Lenders as provided in this ~~Section 3.6~~Section, the amount of each Revolving Loan Lender’s Pro Rata Share of ~~such~~ the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Loans as of 5:00 p.m. Los Angeles time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ Agent shall deliver to each of the Revolving Loan Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Revolving Loan Lender prior to ~~12:00 noon~~2:00 p.m. Los Angeles time, then such Revolving Loan Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. ~~on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m.~~ Los Angeles time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Revolving Loans is more than such Lender’s Pro Rata Share of the outstanding Revolving Loans as of the end of the previous Settlement Period, then such Lender *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Revolving Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Revolving Loan Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Revolving Loan Lenders agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro ~~Rata~~ Rate Share of the outstanding Revolving Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the ~~Administrative~~ Agent on behalf of Revolving Loan Lenders may be advancing and/or may be repaid Revolving Loans prior to the time when Lenders will actually advance and/or be repaid such Revolving Loans, interest with respect to Revolving Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Revolving Loans actually advanced by and repaid to each Revolving Loan Lender and the ~~Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by ~~Borrowers~~ any Borrower or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~any Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ any Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent ~~may, at its option,~~ may at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s disbursement of such ~~Revolving~~ Loan to any Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan to ~~a Borrower (or the Administrative Borrower for the benefit of such Borrower)~~ Borrowers pursuant to ~~subsections (a) and (b) above~~ this Section on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to ~~or for the benefit of such Borrower~~ Borrowers on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to ~~a Borrower~~ Borrowers and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the ~~Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest~~ interest rate provided for in Section 3.1 ~~applicable to Base Rate Loans~~hereof. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to ~~or for the benefit of~~ any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the Administrative Borrower~~ Borrowers of such failure and Borrowers shall *** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. immediately pay such corresponding amount to ~~the Administrative~~ Agent for its own account. A Lender who fails to pay Agent its Pro Rata Share of any Loans made available by the Agent on such Lender’s behalf, or any Lender who fails to pay any other amount owing to Agent, is a “Defaulting Lender”. Agent shall not be obligated to transfer to a Defaulting Lender any payments made by or on behalf of any Borrower or any Obligor to Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, re-lend to any Borrower the amount of all such payments received or retained by it for the account ~~within five (5) Business Days of the Administrative Borrower’s receipt~~ of such ~~notice~~Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a Lender and such Defaulting Lender’s Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by any Borrower or any Obligor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (Pc Mall Inc)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between the ~~Administrative~~ Agent and the Lenders, the ~~Administrative~~ Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of the Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by the Lenders pursuant to the terms hereof, without requirement of prior notice to the Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving~~ Loans made by the ~~Administrative~~ Agent on behalf of the Lenders as provided in this ~~Section 3.6~~Section, the amount of each Lender’s Pro Rata Share of ~~such~~ the outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. New York time on the Business Day immediately preceding the date of each settlement computation; ~~provided that~~ provided, that, the ~~Administrative~~ Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. The ~~Administrative~~ Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as the ~~Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by the ~~Administrative~~ Agent and received by a Lender prior to 12:00 ~~noon~~p.m. New York time, then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. New York time on the same Business Day and if received by a Lender after 12:00 ~~noon~~p.m. New York time, then such Lender shall make the settlement transfer by not later than 3:00 p.m. New York time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to the ~~Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, the ~~Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the ~~Administrative~~ Agent. The ~~Administrative~~ Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the ~~Administrative~~ Agent on behalf of the Lenders may be advancing and/or may be repaid Loans prior to the time when the Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the ~~Administrative~~ Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the ~~Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by the Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that the ~~Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, the ~~Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by the ~~Administrative~~ Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, the ~~Administrative~~ Agent may, at its option, at any time require each Lender to provide the ~~Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to the ~~Administrative~~ Agent’s disbursement of such ~~Revolving~~ Loan to Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) If the ~~Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan to a Borrower (or the ~~Administrative Borrower~~ Company for the benefit of such Borrower) pursuant to ~~subsections (a~~Sections 6.11(a) and (b6.11(b) above on any day, but is requiring each Lender to provide the ~~Administrative~~ Agent with immediately available funds on the date of such ~~Revolving~~ Loan as provided in ~~subsection (c~~Section 6.11(c) above, the ~~Administrative~~ Agent may assume that each Lender will make available to the ~~Administrative~~ Agent such Lender’s Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day and the ~~Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the ~~Administrative~~ Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the ~~Administrative~~ Agent by such Lender, the ~~Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the ~~Administrative~~ Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at the Agent’s option based on the arithmetic mean determined by the Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by the Agent) and if such amounts are not paid within three (3) days of the ~~Administrative~~ Agent’s demand, at the highest ~~interest rate~~ Interest Rate provided for in Section 3.1 hereof applicable to ~~Base~~ Prime Rate Loans. During the period in which such Lender has not paid such corresponding amount to the ~~Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by the ~~Administrative~~ Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by the ~~Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay the ~~Administrative~~ Agent, the ~~Administrative~~ Agent shall promptly thereafter notify the ~~Administrative Borrower~~ Company of such failure and the Borrowers shall pay such corresponding amount to the ~~Administrative~~ Agent for its own account within five (5) Business Days of the ~~Administrative Borrower~~Company’s receipt of such notice. A Lender who fails to pay the Agent its Pro Rata Share of any Loans made available by the Agent on such Lender’s behalf, or any Lender who fails to pay any other amount owing by it to the Agent, is a “Defaulting Lender”. The Agent shall not be obligated to transfer to a Defaulting Lender any payments received by the Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Lender shall instead be paid to or retained by the Agent. The Agent may hold and, in its discretion, relend to a Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by any Loan Party of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require the ~~Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Abl Loan and Security Agreement (U.S. Silica Holdings, Inc.)

Appears in 1 contract

Sources: Loan and Security Agreement (Atlas Air Worldwide Holdings Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Gsi Group Inc)

Settlement Procedures. ~~(a) In order to administer the Credit Facility~~ All payments and other amounts owing in an efficient manner and to minimize the transfer of funds between the Administrative Agent and Lenders, the Administrative Agent may, at its option, subject to the terms of this Section 3.6, make available, on behalf of Lenders, the full amount respect of the Revolving ~~Loans requested or charged~~ Obligations shall be paid in immediately available funds as and when due to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”). (b) With respect to (i) all Swingline Loans and (ii) all Revolving Loans made by the Administrative Agent on behalf of the Revolver Secured Parties and shall be distributed by the Administrative Agent to the Revolver Secured Parties in accordance with the terms of this Agreement. All payments and other amounts owing in respect of the Term Obligations shall be paid in immediately available funds as and when due to the Term Agent on behalf of the Term Secured Parties and shall be distributed by the Term Agent to the Term Secured Parties in accordance with the terms of this Agreement. With respect to all Revolving Loans made by Administrative Agent on behalf of Revolving Lenders as provided in this ~~Section 3.6~~Section, the amount of each Revolving Lender’s 's Pro Rata Share of ~~such~~ the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Loans as of 5:00 p.m. (New York City time) on the Business Day immediately preceding the date of each settlement computation; ~~provided that the~~ provided, that, Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The~~ Administrative Agent shall deliver to each of the applicable Revolving Lenders after the end of each week, or at such lesser period or periods as ~~the~~ Administrative Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by ~~the~~ Administrative Agent and received by a Revolving Lender prior to ~~12:00 noon~~11:00 a.m. (New York City time), then such Revolving Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. (New York City time) on the same Business Day and if received by a Revolving Lender after ~~12:00 noon~~11:00 a.m. (New York City time), then such Revolving Lender shall make the settlement transfer by not later than ~~3:00~~ 2:00 p.m. (New York City time) on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Revolving Lender’s 's Pro Rata Share of the outstanding Revolving Loans is more than such Revolving Lender’s 's Pro Rata Share of the outstanding Revolving Loans as of the end of the previous Settlement Period, then such Revolving Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the~~ Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Revolving Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Revolving Lender’s 's Pro Rata Share of the outstanding Revolving Loans for the previous Settlement Period, ~~the~~ Administrative Agent shall forthwith transfer to such Revolving Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Revolving Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the~~ Administrative Agent. ~~The~~ Administrative Agent and each applicable Revolving Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Revolving Loans and ~~Letters~~ Letter of ~~Credit~~Credit Obligations. Each Revolving Lender shall only be entitled to receive interest on its Pro Rata Share of the Revolving Loans to the extent such Revolving Loans have been funded by such Revolving Lender. Because the Administrative Agent on behalf of Revolving Lenders may be advancing and/or may be repaid Revolving Loans prior to the time when Revolving Lenders will actually advance and/or be repaid such Revolving Loans, interest with respect to Revolving Loans shall be allocated by ~~the~~ Administrative Agent in accordance with the amount of Revolving Loans actually advanced by and repaid to each Revolving Lender and the Administrative Agent and shall accrue from and including the date such Revolving Loans are so advanced to but excluding the date such Revolving Loans are either repaid by Borrowers or actually settled with the applicable Revolving Lender as described in this ~~Section 3.6~~Section. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender willIn addition, on the ~~date the applicable Loan would have been made, purchase an undivided participating interest~~ second Business Day of each month in ~~any Loan to be refunded in an amount equal to its Pro Rata Share~~ respect of the ~~aggregate amount of such Loan. (c) To~~ immediately preceding month, to the extent that the Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving Loans by a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b), the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. (d) If the Administrative Agent is not funding a particular Revolving Loan to a Borrower (or the Administrative Borrower for the benefit of such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume that each Lender will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lenderreceived, the Administrative Agent shall ~~be entitled~~ transfer to ~~recover~~ each Revolving Lender by wire transfer of immediately available funds such ~~corresponding amount on demand from~~ Revolving Lender's Pro Rata Share of all interest and fees owing to such Revolving Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in under this Agreement or any of the other Loan Documents, the amount so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such noticeAgreement. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Credit Agreement (Coffeyville Resources, Inc.)

Appears in 1 contract

Sources: Loan and Security Agreement (Pep Boys Manny Moe & Jack)

Settlement Procedures. (a) In order to administer the ~~Credit Facility~~ financing facility under this Agreement in an efficient manner and to minimize the transfer of funds between the Administrative Agent and the Lenders, the Administrative Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of the Lenders, the full amount of the Revolving Credit Loans requested or charged to ~~any Borrower’s loan account(s~~the Borrowers' Loan Account(s) or otherwise to be advanced by the Lenders pursuant to the terms hereof, without requirement of prior notice to the Lenders of the proposed Revolving ~~Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Credit Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving Credit Loans made by the Administrative Agent on behalf of the Lenders as provided in this ~~Section 3.6~~Section, the amount of each Lender’s 's Pro Rata Share of ~~such~~ the outstanding Revolving Credit Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Credit Loans as of 5:00 p.m. New York time on the Business Day immediately preceding the date of each settlement computation; ~~provided that~~ provided, that, the Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. The Administrative Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding Revolving Credit Loans for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by the Administrative Agent and received by a Lender prior to 12:00 ~~noon~~noon New York time, then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. New York time on the same Business Day and if received by a Lender after 12:00 ~~noon~~noon New York time, then such Lender shall make the settlement transfer by not later than 3:00 p.m. New York time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the dollar amount of a Lender’s 's Pro Rata Share of the outstanding Revolving Credit Loans is more than the dollar amount of such Lender’s 's Pro Rata Share of the outstanding Revolving Credit Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to the Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the dollar amount of a Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Revolving Credit Loans in any Settlement Period is less than the dollar amount of such Lender’s 's Pro Rata Share of the outstanding Revolving Credit Loans for the previous Settlement Period, the Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the Administrative Agent. The Administrative Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Revolving Credit Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Revolving Credit Loans to the extent such Revolving Credit Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Revolving Credit Loans prior to the time when such Lenders will actually ~~advance~~ make Revolving Credit Loans and/or be repaid such Revolving Credit Loans, interest with respect to Revolving Credit Loans shall be allocated by the Administrative Agent in accordance with the amount of Revolving Credit Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Revolving Credit Loans are so advanced to but excluding the date such Revolving Credit Loans are either repaid by the Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that the Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving Credit Loans by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving ~~Loan~~Credit Loans, prior to the Administrative Agent’s 's disbursement of such Revolving ~~Loan~~ Credit Loans to such Borrower. In such event, all Revolving Credit Loans ~~under this Agreement~~ shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender's obligation to make any Revolving Credit Loans requested hereunder nor shall the Revolving Credit Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender's obligation to make any Revolving Credit Loans hereunder. (d) If the Administrative Agent is not funding a particular Revolving Credit Loan to ~~a Borrower~~ the Borrowers (or to the Administrative Borrower for the benefit of such ~~Borrower~~Borrowers) pursuant to ~~subsections (a) and (b) above~~ this Section on any day~~, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above~~, the Administrative Agent may assume that each Lender will make available to the Administrative Agent such Lender’s 's Pro Rata Share of the Revolving Credit Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such ~~Borrower~~ Borrowers on such day. If the Administrative Agent makes such corresponding amount available to ~~a Borrower~~ the Borrowers and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Effective Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s 's demand, at the ~~highest~~ interest rate ~~provided for in Section 3.1~~ then applicable to ~~Base Rate~~ Revolving Credit Loans that are ABR Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount of the Revolving Credit Loans so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be deemed a Revolving Credit Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and the Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s 's receipt of such notice. A Lender who fails to pay the Administrative Agent its Pro Rata Share of any Revolving Credit Loans made available by the Administrative Agent on such Lender's behalf, or any Lender who fails to pay any other amount owing by it to the Administrative Agent, is a "Defaulting Lender". The Administrative Agent shall not be obligated to transfer to a Defaulting Lender any payments received by the Administrative Agent for the Defaulting Lender's benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Lender shall instead be paid to, or retained by, the Administrative Agent. The Administrative Agent may hold and, in its discretion, re-lend to a Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Loan Documents, and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Credit Commitment of any Lender, or relieve or excuse the performance by any Loan Party of its duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other Loan ~~Documents~~ Documents, shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Revolving Credit Commitment hereunder or to prejudice any rights that ~~any Borrower~~ the Borrowers may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Revolving Credit Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Financing Agreement (Milacron Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Huffy Corp)

Appears in 1 contract

Sources: Loan and Security Agreement (Lighting Science Group Corp)

Appears in 1 contract

Sources: Loan and Security Agreement (Spirit Realty Capital, Inc.)

Settlement Procedures. (a) In order to administer the Revolving Credit ~~Facility~~ Loan in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, so long as the ~~Administrative~~ conditions precedent set forth in Section 2.1 and Section 2.2, as the case may be, remain satisfied, Agent may, at in its ~~option~~discretion, subject to the ~~terms of this Section 3.6~~following paragraphs (b), (c) and (d), make available, on behalf of Lenders, the full amount of the Revolving ~~Loans~~ Credit Advances in an amount of up to $35,000,000 outstanding on any day (after application of payments received on such day) requested or ~~charged to any Borrower’s loan account(s) or otherwise to be advanced~~ deemed requested by ~~Lenders~~ Borrower pursuant to ~~the terms hereof~~Section 1.1(c) and Section 1.1(h), without ~~requirement of prior~~ notice to Lenders of the proposed Revolving ~~Loans (each such advance by the Administrative Agent, a “Settlement Advance”~~Credit Advance pursuant to Section 1.1(c). (b) ~~With respect to (i) all Swingline Loans and (ii) all~~ If Agent shall have made one or more Revolving ~~Loans made by the Administrative Agent~~ Credit Advances on behalf of Lenders as provided in this Section ~~3.6~~1.13(b), the amount of each Lender’s ~~Pro Rata~~ Proportionate Share of ~~such~~ the outstanding ~~Loans~~ Revolving Credit Advances (for purposes of this Section 1.13(b)) shall be computed ~~weekly,~~ weekly rather than daily and shall be adjusted upward or downward on the basis of the amount of the outstanding ~~Loans~~ Revolving Credit Advances as of 5:00 ~~p.m.~~ P.M. (New York City time) on the Business Day immediately preceding the date of each ~~settlement~~ computation; ~~provided~~ provided, that ~~the Administrative~~ Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. ~~The Administrative~~ Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding ~~Loans~~ Revolving Credit Advances for such period (such week or lesser period or periods being ~~hereinafter~~ hereafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Lender prior to 12:00 ~~noon,~~ Noon (New York City time) then such Lender shall make the ~~settlement transfer~~ transfers described in ~~this Section 3.6 by~~ the next succeeding sentence no later than ~~3:00 p.m.~~ 2:00 P.M. (New York City time) on the ~~same Business Day~~ day such summary statement was sent, and if such summary statement is sent by Agent and received by a Lender after 12:00 ~~noon~~Noon (New York City time), ~~then~~ such Lender shall make ~~the settlement transfer by not~~ such transfers no later than ~~3:00 p.m.~~ 2:00 P.M. (New York City time) on the next succeeding Business ~~Day following the date of receipt~~Day. If, ~~as of the end of~~ in any Settlement Period, the amount of a Lender’s ~~Pro Rata~~ Proportionate Share of the outstanding ~~Loans~~ Revolving Credit Advances is more than such Lender’s ~~Pro Rata~~ Proportionate Share of the outstanding ~~Loans as of the end of~~ Revolving Credit Advances for the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the next preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase~~. Alternatively~~; and on the other hand, if the amount of a Lender’s ~~(other than a Defaulting Lender) Pro Rata~~ Proportionate Share of the outstanding ~~Loans~~ Revolving Credit Advances in any Settlement Period is less than the amount of such Lender’s ~~Pro Rata~~ Proportionate Share of the outstanding ~~Loans~~ Revolving Credit Advances for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds ~~and effect such settlement~~ shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Lenders agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the ~~dollar~~ Dollar amount of its ~~Pro Rata~~ Proportionate Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanRevolving Credit Advances. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving ~~Loans~~ Credit Advances by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to ~~this~~ Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares1.13(a). (d) If Because Agent, on behalf of Lenders, may be advancing or may be repaid Revolving Credit Advances prior to the ~~Administrative~~ time when Lenders will actually advance or be repaid Revolving Credit Advances, interest, Non-use Fees and Letter of Credit Fees with respect to the outstanding Revolving Credit Advances shall be allocated by Agent ~~is not funding~~ to each Lender (including Agent in its capacity as a ~~particular~~ Lender), and the amount of each Lender’s (including Agent’s in its capacity as a Lender) Proportionate Share shall be computed daily, in accordance with the amount of the outstanding Revolving ~~Loan~~ Credit Advances actually advanced by and repaid to each Lender (including Agent in its capacity as a Lender) on each day during each Settlement Period and shall accrue from and including the date such Revolving Credit Advances are advanced by Agent to but excluding the date such Revolving Credit Advances are repaid by Borrower in accordance with Section 1.2 or actually settled by the applicable Lender as described in this Section 1.13. On the second Business Day of each calendar month (an “Interest Settlement Date”), Agent will advise each Lender by telephone, telecopy or other form of written transmission of the ~~Administrative Borrower~~ amount of such Lender’s Proportionate Share of interest paid and Non-use Fees and Letter of Credit Fees paid for the benefit of ~~such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds~~ Lenders on the ~~date~~ Revolving Credit Loan as of such ~~Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume~~ Interest Settlement Date. Provided that ~~each~~ such Lender ~~will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise~~ has made ~~on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount~~ all payments required to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in it under this Agreement ~~or any of~~ and the other Loan Documents, Agent will pay to such Lender, by wire transfer to such Lender not later than 12:00 noon (New York time) on the ~~amount so advanced by~~ next Business Day following the ~~Administrative Agent to or~~ Interest Settlement Date, such Lender’s Proportionate Share of interest paid and Non-use Fees and Letter of Credit Fees paid for the benefit of ~~any Borrower shall, for all purposes hereof, be a~~ Lenders on the Revolving Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such noticeCredit Loan. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Credit Agreement (Dicks Sporting Goods Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Image Entertainment Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (WHX Corp)

Appears in 1 contract

Sources: Loan and Security Agreement (Universal Automotive Industries Inc /De/)

Appears in 1 contract

Sources: Loan and Security Agreement (WHX Corp)

Appears in 1 contract

Sources: Loan and Security Agreement (Adc Telecommunications Inc)

Settlement Procedures. (a) In order to administer the ~~Credit Facility~~ credit facility provided hereunder in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may~~, at its option~~, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to ~~any Borrower’s~~ Borrowers’ loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without any requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving Loans made by ~~the Administrative~~ Agent on behalf of Revolving Loan Lenders as provided in this ~~Section 3.6~~Section, the amount of each Revolving Loan Lender’s Pro Rata Share of ~~such~~ the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Loans as of 5:00 p.m. Los Angeles time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ Agent shall deliver to each of the Revolving Loan Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Revolving Loan Lender prior to ~~12:00 noon~~2:00 p.m. Los Angeles time, then such Revolving Loan Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. ~~on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m.~~ Los Angeles time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Revolving Loans is more than such Lender’s Pro Rata Share of the outstanding Revolving Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Revolving Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Revolving Loan Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Revolving Loan Lenders agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro ~~Rata~~ Rate Share of the outstanding Revolving Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such Loan. (c) To the extent that the Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving Loans by a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b), the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. (d) If the Administrative Agent is not funding a particular Revolving Loan to a Borrower (or the Administrative Borrower for the benefit of such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume that each Lender will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such notice. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.such

Appears in 1 contract

Sources: Loan and Security Agreement (Pcm, Inc.)

Appears in 1 contract

Sources: Loan and Security Agreement (Proliance International, Inc.)

Appears in 1 contract

Sources: Loan and Security Agreement (Huffy Corp)

Appears in 1 contract

Sources: Loan and Security Agreement (Delta Apparel Inc)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to ~~any~~ Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving~~ Loans made by ~~the Administrative~~ Agent on behalf of Lenders as provided in this ~~Section 3.6~~Section, the amount of each Lender’s Pro Rata Share of ~~such~~ the outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. New York time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Lender prior to 12:00 ~~noon~~p.m. New York time, then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. New York City time on the same Business Day and if received by a Lender after 12:00 ~~noon~~p.m. New York City time, then such Lender shall make the settlement transfer by not later than 3:00 p.m. New York City time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the ~~Administrative~~ Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the ~~Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by ~~Borrowers~~ Borrower or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent may, at its option, at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s disbursement of such ~~Revolving~~ Loan to Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) Upon the making of any Loan by Agent as provided herein, without further action by any party hereto, each Lender shall be deemed to have irrevocably and unconditionally purchased and received from Agent, without recourse or warranty, an undivided interest and participation to the extent of such Lender’s Pro Rata Share in such Loan. To the extent that there is no settlement in accordance with the terms hereof, Agent may at any time require the Lenders to fund their participations. From and after the date, if any, on which any Lender has funded its participation in any such Loan, Agent shall promptly distribute to such Lender, such Lender’s Pro Rata Share of all payments of principal and interest received by Agent in respect of such Loan (e) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan to a Borrower ~~(or the Administrative Borrower for the benefit of such Borrower)~~ pursuant to ~~subsections (a~~Sections 6.10(a) and (b6.10(b) above on any day, but is requiring each Lender to provide ~~the Administrative~~ Agent with immediately available funds on the date of such ~~Revolving~~ Loan as provided in ~~subsection (c~~Section 6.10(c) above, ~~the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of ~~such~~ Borrower on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of ~~the Administrative~~ Agent’s demand, at the highest ~~interest rate~~ Interest Rate provided for in Section 3.1 hereof applicable to ~~Base~~ Prime Rate Loans. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to or for the benefit of ~~any~~ Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the Administrative~~ Borrower of such failure and ~~Borrowers~~ Borrower shall pay such corresponding amount to ~~the Administrative~~ Agent for its own account within five (5) Business Days of ~~the Administrative~~ Borrower’s receipt of such notice. A Lender that (i) has failed to fund any portion of Loans as required hereunder within one (1) Business Day of the date required to be funded by it hereunder, (ii) has otherwise failed to pay over to Agent or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, or (iii) any Lender that has become insolvent or subject to bankruptcy or a similar proceeding, shall be a “Defaulting Lender”. (ef) Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (0). All amounts otherwise payable in respect of the Pro Rata Share of principal to a Defaulting Lender shall instead be paid to the other Lenders based on their Pro Rata Shares calculated after giving effect to the reduction of the Defaulting Lender’s Commitment to zero as provided herein or at Agent’s option may instead be paid to and retained by Agent. To the extent that Agent elects to receive and retain such amounts, Agent may hold them and, in its reasonable discretion, relend such amounts to a Borrower. To the extent that Agent exercises its option to relend such amounts, such amounts shall be treated as Loans for the account of Agent in addition to the Loans that are made by the Lenders other than Defaulting Lenders based on their Pro Rata Shares as calculated after giving effect to the reduction of the Defaulting Lender’s Commitment to zero as provided herein but shall be repaid in the same order of priority as the principal amount of other Loans in accordance with Section 6.4 hereof. The rights of a Defaulting Lender shall be limited as provided herein until such time as the Defaulting Lender has made all payments to Agent that were the basis for it becoming a Defaulting Lender and is otherwise in compliance under the Loan Agreement. Upon the cure by Defaulting Lender of the event that is the basis for it to be a Defaulting Lender by making such payment or payments, including, at Agent’s option, any amount that Defaulting Lender would have been required to make as a lender had it not been a Defaulting Lender, such Lender shall cease to be a Defaulting Lender and shall be entitled to payment of interest and fees, as applicable (excluding any portion of any unused line fee with respect to such period) to the extent previously received and retained by Agent from or for the account of Borrower on the funds constituting Loans made by such Lender prior to the date of it being a Defaulting Lender (and not previously paid to such Lender) and shall otherwise, after such cure, make Loans and settle in respect of the Loans and other Obligations in accordance with the terms hereof. The existence of a Defaulting Lender and the operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by Borrower or any Guarantor of their duties and obligations hereunder. (g) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that ~~any~~ Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (Aep Industries Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Pemstar Inc)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Working Capital Agent and Lenders, ~~the Administrative~~ Working Capital Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving~~ Loans made by ~~the Administrative~~ Working Capital Agent on behalf of Lenders as provided in this ~~Section 3.6~~Section, the amount of each Lender’s Pro Rata Share of ~~such~~ the outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. (Eastern time) on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Working Capital Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. ~~The Administrative~~ Working Capital Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Working Capital Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the Administrative~~ Working Capital Agent and received by a Lender prior to ~~12:00 noon~~1:00 p.m. (Eastern time), then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. (Eastern time) on the same Business Day and if received by a Lender after ~~12:00 noon~~1:00 p.m. (Eastern time), then such Lender shall make the settlement transfer by not later than 3:00 p.m. (Eastern time) on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Working Capital Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, ~~the Administrative~~ Working Capital Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Working Capital Agent. ~~The Administrative~~ Working Capital Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because ~~the Administrative~~ Working Capital Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by ~~the Administrative~~ Working Capital Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and ~~the Administrative~~ Working Capital Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Working Capital Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Working Capital Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Working Capital Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Working Capital Agent may, at its option, at any time require each Lender to provide ~~the Administrative~~ Working Capital Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Working Capital Agent’s disbursement of such ~~Revolving~~ Loan to Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) If ~~the Administrative~~ Working Capital Agent is not funding a particular ~~Revolving~~ Loan to a Borrower (or ~~the~~ Administrative Borrower for the benefit of such Borrower) pursuant to ~~subsections (a~~Sections 6.11(a) and (b6.11(b) above on any day, but is requiring each Lender to provide ~~the Administrative~~ Working Capital Agent with immediately available funds on the date of such ~~Revolving~~ Loan as provided in ~~subsection (c~~Section 6.11(c) above, ~~the Administrative~~ Working Capital Agent may assume that each Lender will make available to ~~the Administrative~~ Working Capital Agent such Lender’s Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day and ~~the Administrative~~ Working Capital Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If ~~the Administrative~~ Working Capital Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to ~~the Administrative~~ Working Capital Agent by such Lender, ~~the Administrative~~ Working Capital Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Working Capital Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Working Capital Agent’s option based on the arithmetic mean determined by Working Capital Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (Eastern time) on that day by each of the three leading brokers of Federal funds transactions in New York, New York selected by Working Capital Agent) and if such amounts are not paid within three (3) days of ~~the Administrative~~ Working Capital Agent’s demand, at the highest ~~interest rate~~ Interest Rate provided for in Section 3.1 hereof applicable to ~~Base~~ Prime Rate Loans. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Working Capital Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Working Capital Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Working Capital Agent for its own account. Upon any such failure by a Lender to pay ~~the Administrative~~ Working Capital Agent, ~~the Administrative~~ Working Capital Agent shall promptly thereafter notify ~~the~~ Administrative Borrower of such failure and Borrowers shall immediately pay such corresponding amount to ~~the Administrative~~ Working Capital Agent for its own account. A Lender who fails to pay Working Capital Agent its Pro Rata Share of any Loans made available by Working Capital Agent on such Lender’s behalf, or any Lender who fails to pay any other amount owing by it to Working Capital Agent, is a “Defaulting Lender”. Working Capital Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Working Capital Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Lender shall instead be paid to or retained by Working Capital Agent. Working Capital Agent may hold and, in its discretion, relend to a Borrower the amount of all such payments received or retained by it for the account ~~within five (5) Business Days of the Administrative Borrower’s receipt~~ of such ~~notice~~Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by any Borrower or Guarantor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Working Capital Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (Hancock Fabrics Inc)

Settlement Procedures. (a) In order to administer the Credit ~~Facility~~ Facilities in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to ~~any~~ Borrower’s 's loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving~~ Loans made by ~~the Administrative~~ Agent on behalf of Lenders as provided in this ~~Section 3.6~~Section, the amount of each Lender’s 's Pro Rata Share of ~~such~~ the outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. Chicago time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Lender prior to ~~12:00 noon~~2:00 p.m. Chicago time, then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. ~~on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m.~~ Chicago time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s 's Pro Rata Share of the outstanding Loans is more than such Lender’s 's Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s 's Pro Rata Share of the outstanding Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Agent and each Lender agrees to ~~▇▇▇▇~~ mark its books and records at the end of each Settlement Period to ~~show at~~ sh▇▇ ▇t all times the dollar amount of its Pro Rata Share of the outstanding Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because ~~the Administrative~~ Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and ~~the Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by ~~Borrowers~~ Borrower or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent may, at its option, at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s 's disbursement of such ~~Revolving~~ Loan to Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender's obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender's obligation to make a Loan hereunder. (d) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan to a Borrower ~~(or the Administrative Borrower for the benefit of such Borrower)~~ pursuant to ~~subsections (a) and (b)~~ this Section above on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s 's Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to ~~or for the benefit of such~~ Borrower on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of ~~the Administrative~~ Agent’s 's demand, at the highest ~~interest rate~~ Interest Rate provided for in Section 3.1 hereof applicable to ~~Base~~ Prime Rate Loans. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to ~~or for the benefit of any~~ Borrower shall, for all purposes hereof, be a Revolving Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the Administrative~~ Borrower of such failure and ~~Borrowers~~ Borrower shall pay such corresponding amount to ~~the Administrative~~ Agent for its own account within five (5) Business Days of ~~the Administrative~~ Borrower’s 's receipt of such notice. A Lender who fails to pay Agent its Pro Rata Share of any Loans made available by Agent on such Lender's behalf, or any Lender who fails to pay any other amount owing by it to Agent, is a "Defaulting Lender". Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Agent for the Defaulting Lender's benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, relend to Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitments shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Commitments of any Lender, or relieve or excuse the performance by Borrower or any Obligor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its ~~Commitment~~ Commitments hereunder or to prejudice any rights that ~~any~~ Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9Commitments.

Appears in 1 contract

Sources: Loan and Security Agreement (Champion Enterprises Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Handy & Harman Ltd.)

Settlement Procedures. Section 6.10 of the Loan Agreement is hereby amended by deleting such Section in its entirety and replacing it with the following: (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Tranche A Lenders, Agent shall, to the ~~Administrative~~ extent that the aggregate amount of Tranche A Loans since the last day of the immediately preceding Settlement Period plus the amount of the requested Tranche A Loans does not exceed $20,000,000 (such Tranche A Loans in an amount not in excess of $20,000,000 are hereinafter referred to as the “Swingline Loans”), and otherwise Agent may, at its option, in any case subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of ~~Lenders~~Tranche A Lenders and in accordance with the terms of this Agreement, the full amount of the ~~Revolving~~ Tranche A Loans requested or charged to any Borrower’s loan ~~account(s)~~ account or otherwise to be advanced by Tranche A Lenders pursuant to the terms hereof, without requirement of prior notice to Tranche A Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Tranche A Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving~~ Tranche A Loans made by ~~the Administrative~~ Agent on behalf of Tranche A Lenders as provided in this ~~Section 3.6~~Section, the amount of each Tranche A Lender’s Pro Rata Share of ~~such~~ the outstanding Tranche A Loans shall be computed ~~weekly~~weekly (or, in the case of Swingline Loans, computed at such time as Agent may determine), and shall be adjusted upward or downward on the basis of the amount of the outstanding Tranche A Loans as of 5:00 p.m. New York City time on the Business Day immediately preceding the date of each applicable settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ Agent shall deliver to each of the Tranche A Lenders after the end of each ~~week~~week (or, in the case of Swingline Loans, at such times as Agent may determine), or at such ~~lesser~~ other period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Tranche A Loans (other than Swingline Loans) and Swingline Loans, as applicable, for such period (such week or ~~lesser~~ other period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Tranche A Lender prior to 12:00 ~~noon~~p.m. New York City time on any Business Day, then such Tranche A Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. New York City time on the same Business Day and if received by a Tranche A Lender after 12:00 ~~noon~~p.m. New York City time, then such Tranche A Lender shall make the settlement transfer by not later than 3:00 p.m. New York City time on the next Business Day following the date of receipt. If, as of the end of any applicable Settlement Period, the amount of a Tranche A Lender’s Pro Rata Share of the outstanding Tranche A Loans (excluding Swingline Loans) or Swing Line Loans, as applicable, is more than such Tranche A Lender’s Pro Rata Share of the outstanding Tranche A Loans (excluding Swingline Loans) or Swing Line Loans, respectively, as of the end of the previous applicable Settlement Period, then such Tranche A Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Tranche A Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Tranche A Loans in (excluding Swingline Loans) or Swing Line Loans, as applicable, as of the end of any applicable Settlement Period is less than the amount of such Tranche A Lender’s Pro Rata Share of the outstanding Tranche A Loans ~~for~~ (excluding Swingline Loans) or Swing Line Loans, respectively, as of the end of the previous applicable Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Tranche A Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of Agent and each of the Tranche A Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the ~~Administrative~~ Tranche A Lenders or Agent, as the case may be. ~~The Administrative~~ Agent and each Tranche A Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Tranche A Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Tranche A Lender shall only be entitled to receive interest on its Pro Rata Share of the Tranche A Loans to the extent such Tranche A Loans have been funded by such Tranche A Lender. Because ~~the Administrative~~ Agent on behalf of Tranche A Lenders may be advancing and/or may be repaid Tranche A Loans prior to the time when Tranche A Lenders will actually advance and/or be repaid such Tranche A Loans, interest with respect to Tranche A Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Tranche A Loans actually advanced by and repaid to each Tranche A Lender and ~~the Administrative~~ Agent and shall accrue from and including the date such Tranche A Loans are so advanced to but excluding the date such Tranche A Loans are either repaid by Borrowers or actually settled with the applicable Tranche A Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Tranche A Loans by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this ~~Section 3.6~~Section. In lieu of ~~weekly or more frequent~~ periodic settlements, ~~the Administrative~~ Agent may, at its option, at any time require each Tranche A Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Tranche A Loan, prior to ~~the Administrative~~ Agent’s disbursement of such ~~Revolving~~ Tranche A Loan to (or for the benefit of) a Borrower. In such event, all ~~Revolving~~ Tranche A Loans under this Agreement shall be made by ~~the~~ Tranche A Lenders simultaneously and proportionately to their Pro Rata Shares. Each Tranche B Lender shall be required to provide Agent with immediately available funds representing its Pro Rata Share of each Tranche B Loan, prior to Agent’s disbursement of such Tranche B Loan to (or for the benefit of) a Borrower. (d) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Tranche A Loan to a Borrower (or ~~the~~ Administrative ~~Borrower~~ Agent for the benefit of such Borrower) pursuant to ~~subsections (a) and (b) above~~ this Section on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each Tranche A Lender will make available to ~~the Administrative~~ Agent such Tranche A Lender’s Pro Rata Share of the ~~Revolving~~ Tranche A Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Tranche A Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Tranche A Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of ~~the Administrative~~ Agent’s demand, at the highest ~~interest rate~~ Interest Rate provided for in Section 3.1 hereof applicable to ~~Base~~ Prime Rate Loans. During the period in which such Tranche A Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Tranche A Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Tranche A Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the~~ Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to ~~the Administrative~~ Agent for its own account within five (5) Business Days of ~~the~~ Administrative Borrower’s receipt of such notice. (e) A Lender who defaults in any of its material obligations hereunder, fails to pay Agent its Pro Rata Share of any Loans made available by the Agent on such Lender’s behalf, or fails to pay any other amount owing by it to Agent, is a “Defaulting Lender”. Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, relend to a Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by any Borrower or Obligor of their duties and obligations hereunder. (f) No Lender shall be responsible for any default by any other Lender in the other Lenders’ obligations to make Loans requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lenders’ obligations to make Loans hereunder. Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.”

Appears in 1 contract

Sources: Loan Agreement (Wise Metals Group LLC)

Settlement Procedures. (a) In order to administer the US Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and US Lenders, ~~the Administrative~~ Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of US Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to ~~any~~ US Borrower’s 's loan account(s) or otherwise to be advanced by US Lenders pursuant to the terms hereof, without requirement of prior notice to US Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving~~ Loans made by ~~the Administrative~~ Agent on behalf of US Lenders under the US Credit Facility as provided in this ~~Section 3.6~~Section, the amount of each US Lender’s 's Pro Rata Share of ~~such~~ the outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. Chicago time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ Agent shall deliver to each of the US Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Loans under the US Credit Facility for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by ~~the Administrative~~ Agent and received by a US Lender prior to 12:00 ~~noon~~noon Chicago time, then such US Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. Chicago time on the same Business Day and if received by a Lender after 12:00 ~~noon~~noon Chicago time, then such Lender shall make the settlement transfer by not later than 3:00 p.m. Chicago time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a US Lender’s 's Pro Rata Share of the outstanding Loans under the US Credit Facility is more than such US Lender’s 's Pro Rata Share of the outstanding Loans under the US Credit Facility as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Loans under the US Credit Facility in any Settlement Period is less than the amount of such Lender’s 's Pro Rata Share of the outstanding Loans under the US Credit Facility for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the US Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Agent and each US Lender agrees to ~~▇▇▇▇~~ mark its books and records at the end of each Settlement Period to ▇▇ show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations under the US Credit Facility. Each US Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the ~~Administrative~~ Agent on behalf of US Lenders may be advancing and/or may be repaid Loans prior to the time when US Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Loans actually advanced by and repaid to each US Lender and the ~~Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by ~~Borrowers~~ or on behalf of US Borrower or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower~~ or ~~with the collected proceeds~~ on ~~deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~behalf of US Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent may, at its option, at any time require each US Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s 's disbursement of such ~~Revolving~~ Loan to US Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the US Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender's obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender's obligation to make a Loan hereunder. (d) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan to a US Borrower ~~(or the Administrative Borrower for the benefit of such Borrower)~~ pursuant to ~~subsections (a) and (b) above~~ this Section on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each US Lender will make available to ~~the Administrative~~ Agent such Lender’s 's Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made under the US Credit Facility on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of ~~such~~ US Borrower on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to a or for the benefit of US Borrower and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent's option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of ~~the Administrative~~ Agent’s 's demand, at the highest ~~interest rate~~ Interest Rate provided for in Section 3.1 hereof applicable to ~~Base~~ Prime Rate Loans. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to or for the benefit of ~~any~~ US Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by Agent under the ~~Administrative Agent~~ US Credit Facility for its own account. Upon any such failure by a US Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the Administrative~~ US Borrower of such failure and ~~Borrowers~~ US Borrower shall pay or cause to be paid such corresponding amount to ~~the Administrative~~ Agent for its own account within five (5) Business Days of ~~the Administrative~~ US Borrower’s 's receipt of such notice. A Lender who fails to pay Agent its Pro Rata Share of any Loans made available by the Agent on such Lender's behalf, or any Lender who fails to pay any other amount owing by it to Agent, is a "Defaulting Lender". Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Agent for the Defaulting Lender's benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, relend to a Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by any Borrower or Guarantor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (Hartmarx Corp/De)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the~~ Administrative and Collateral Agent and Lenders, ~~the~~ Administrative and Collateral Agent may~~, at its option~~, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to any Borrower’s loan ~~account(s)~~ account or otherwise to be advanced by Lenders pursuant to the terms hereof, without any requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving Loans made by ~~the~~ Administrative and Collateral Agent on behalf of Revolving Loan Lenders as provided in this ~~Section 3.6~~Section, the amount of each Revolving Loan Lender’s Pro Rata Share of ~~such~~ the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Loans as of 5:00 p.m. New York time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the~~ provided, that, Administrative and Collateral Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The~~ Administrative and Collateral Agent shall deliver to each of the Revolving Loan Lenders after the end of each week, or at such lesser period or periods as ~~the~~ Administrative and Collateral Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the~~ Administrative and Collateral Agent and received by a Revolving Loan Lender prior to ~~12:00 noon~~2:00 p.m. New York time, then such Revolving Loan Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. ~~on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m.~~ New York time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Revolving Loans is more than such Lender’s Pro Rata Share of the outstanding Revolving Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the~~ Administrative and Collateral Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Revolving Loans for the previous Settlement Period, ~~the~~ Administrative and Collateral Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Revolving Loan Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the~~ Administrative and Collateral Agent. ~~The~~ Each of Administrative and Collateral Agent and ~~each Lender~~ Revolving Loan Lenders agrees to ▇m▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro ~~Rata~~ Rate Share of the outstanding Revolving Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative and Collateral Agent on behalf of Revolving Loan Lenders may be advancing and/or may be repaid Revolving Loans prior to the time when Lenders will actually advance and/or be repaid such Revolving Loans, interest with respect to Revolving Loans shall be allocated by ~~the~~ Administrative and Collateral Agent in accordance with the amount of Revolving Loans actually advanced by and repaid to each Revolving Loan Lender and the Administrative and Collateral Agent and shall accrue from and including the date such Revolving Loans are so advanced to but excluding the date such Revolving Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the~~ Administrative and Collateral Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the~~ Borrowers, Administrative ~~Agent Payment Account as described in Section 3.5(b), the Administrative~~ and Collateral Agent may apply such amounts repaid directly to any amounts made available by ~~the~~ any Administrative and Collateral Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the~~ Administrative and Collateral Agent ~~may, at its option,~~ may at any time require each Lender to provide ~~the~~ Administrative and Collateral Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the~~ Administrative and Collateral Agent’s disbursement of such ~~Revolving~~ Loan to ~~Borrower~~Borrowers. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Revolving Loan Commitment of any Revolving Loan Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) If ~~the~~ Administrative and Collateral Agent is not funding a particular ~~Revolving~~ Loan to ~~a Borrower (or the Administrative Borrower for the benefit of such Borrower)~~ Borrowers pursuant to ~~subsections (a) and (b) above~~ this Section on any day, ~~but is requiring each Lender to provide the~~ Administrative ~~Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ and Collateral Agent may assume that each Lender will make available to ~~the~~ Administrative and Collateral Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and ~~the~~ Administrative and Collateral Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to ~~or for the benefit of such Borrower~~ Borrowers on such day. If ~~the~~ Administrative and Collateral Agent makes such corresponding amount available to ~~a Borrower~~ Borrowers and such corresponding amount is not in fact made available to ~~the~~ Administrative and Collateral Agent by such Lender, ~~the~~ Administrative and Collateral Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the~~ Administrative and Collateral Agent at the ~~Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest~~ interest rate provided for in Section 3.1 ~~applicable to Base Rate Loans~~hereof. During the period in which such Lender has not paid such corresponding amount to ~~the~~ Administrative and Collateral Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the~~ Administrative and Collateral Agent to ~~or for the benefit of any Borrower~~ Borrowers shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the~~ Administrative and Collateral Agent for its own account. Upon any such failure by a Lender to pay ~~the~~ Administrative and Collateral Agent, ~~the~~ Administrative and Collateral Agent shall promptly thereafter notify ~~the~~ Administrative Borrower of such failure and Borrowers shall immediately pay such corresponding amount to ~~the~~ Administrative and Collateral Agent for its own ~~account within five (5) Business Days~~ account. A Lender who fails to pay Administrative and Collateral Agent its Pro Rata Share of any Loans made available by the Administrative ~~Borrower~~and Collateral Agent on such Lender’s ~~receipt~~ behalf, or any Lender who fails to pay any other amount owing to Administrative and Collateral Agent, is a “Defaulting Lender”. Administrative and Collateral Agent shall not be obligated to transfer to a Defaulting Lender any payments made by or on behalf of any Borrower or any Guarantor to Administrative and Collateral Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Administrative and Collateral Agent. Administrative and Collateral Agent may hold and, in its discretion, re-lend to Borrowers the amount of all such payments received or retained by it for the account of such ~~notice~~Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a Lender and such Defaulting Lender’s Revolving Loan Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Loan Commitment of any Lender, or relieve or excuse the performance by any Borrower or any Guarantor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the~~ Administrative and Collateral Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Revolving Loan Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Revolving Loan Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (BlueLinx Holdings Inc.)

Appears in 1 contract

Sources: Loan and Security Agreement (J Crew Operating Corp)

Appears in 1 contract

Sources: Loan and Security Agreement (Huffy Corp)

Settlement Procedures. (a) ~~In order~~ Any Collections of Purchased Receivables received (or deemed to ~~administer~~ have been received, including without limitation any Collections deemed to have been received pursuant to Section 2.04(d)) by the ~~Credit Facility in an efficient manner and to minimize the transfer of funds between the Administrative Agent and Lenders, the Administrative Agent may, at its option, subject~~ Seller shall be remitted directly to the ~~terms of this Section 3.6, make available,~~ Collateral Agent on behalf of ~~Lenders~~the Purchasers by depositing such Collections in a Lock-Box Account within one Business Day of Seller’s receipt (or deemed receipt) thereof. On each Payment Date, the ~~full amount~~ Seller shall direct the Collateral Agent to withdraw from the Collection Account, and pay on behalf of the ~~Revolving Loans requested or charged~~ Seller to each Purchaser (i) Yield on all outstanding Capital the Fixed Period for which ends on such date plus (ii) to each Conduit Purchaser, the CP Dealer Fees, if any, on any ~~Borrower’s loan account(s) or otherwise~~ Commercial Paper maturing on such date and raised to ~~be advanced by Lenders pursuant~~ fund such Capital. On each Settlement Date, the Seller shall pay to ING, the ~~terms hereof~~ING Yield, ~~without requirement of prior notice to Lenders of the proposed Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~if any. (b) ~~With respect~~ On each Settlement Date to occur prior to the Designated Termination Date, the Seller shall either: (i) ~~all Swingline Loans and (ii) all Revolving Loans made by the Administrative~~ if each Managing Agent ~~on behalf of Lenders as provided in this Section 3.6~~has consented thereto, the amount of each Lender’s Pro Rata Share of such outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. on the Business Day immediately preceding the date of each settlement computation; provided that the Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. The Administrative Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by the Administrative Agent and received by a Lender prior to 12:00 noon, then such Lender shall make the settlement transfer described in this Section 3.6 by no later than 3:00 p.m. on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m. on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to the Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s (other than a Defaulting Lender) Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, the Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the Administrative Agent. The Administrative Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent sell additional Receivables hereunder in accordance with the ~~amount of Loans actually advanced by~~ procedures and ~~repaid~~ subject to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in ~~Article 5. Further~~Section 2.01 such that, ~~each Lender agrees~~ immediately following such Receivables Purchase, the Capital Limit equals or exceeds outstanding Capital and ~~acknowledges that if prior~~ the ING Capital Limit equals or exceeds the outstanding ING Capital, in which event the Collateral Agent shall, subject to the ~~refunding~~ order of ~~any~~ priority set forth in Section 6.11(b), remit the Collections set aside to the Seller in consideration of the purchase price for such Receivables Purchase; or (ii) if each Managing Agent has not consented to such additional purchase, out of the Collections set aside, subject to the order of priority set forth in Section 6.11(b), direct the Collateral Agent to apply an amount of such Collections toward the reduction of outstanding ~~Loans~~ Capital, or ING Capital, as applicable, such that, following the application of such Collections to outstanding Capital or ING Capital, the Capital Limit equals or exceeds the outstanding Capital and the ING Capital Limit equals or exceeds the outstanding ING Capital. Each reduction of Capital pursuant to this Section ~~3.6~~2.04(b)(ii) shall be made ratably to the Purchasers in accordance with their respective Pro Rata Shares, ~~one~~ and each payment of the ~~events~~ above-described ~~in Section 11.1(f), (g) or (h)~~ amount of Capital to any Purchaser shall ~~have occurred, each Lender will, on the date the applicable Loan would have been made, purchase~~ be accompanied by payment of an ~~undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate~~ amount of such ~~Loan~~Collections equal to Yield accrued or to accrue in respect of such amount of Capital through the end of the Fixed Period(s) to which such Capital is allocated (without duplication, however, of any amounts paid to such Purchaser pursuant to Section 6.11(b)(ii)). (c) To the extent that the Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving Loans by a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b), the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares.[Reserved] (d) If ~~the Administrative Agent is not funding a particular Revolving Loan to a Borrower (or the Administrative Borrower for the benefit of such Borrower) pursuant to subsections (a) and (b) above~~ on any ~~day~~day the Outstanding Balance of any Purchased Receivable is either (i) reduced or adjusted as a result of any defective, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above~~rejected, ~~the Administrative Agent may assume that each Lender will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested~~ returned, repossessed or ~~otherwise made on such day and the Administrative Agent may~~foreclosed merchandise, ~~in its discretion~~any defective or rejected services, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement any cash discount or any ~~of the~~ other ~~Loan Documents, the amount so advanced~~ adjustment made or performed by the ~~Administrative Agent to~~ Seller or ~~for the benefit of~~ any Borrower shall, for all purposes hereof, be a Revolving Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such notice. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other ~~Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender~~ Person (including, without limitation, ~~a Defaulting Lender~~those described in the definition of “Dilution Factors”), or (ii) reduced or ~~to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender~~ canceled as a result of a setoff in respect of any ~~default~~ claim by the Obligor thereof against the Seller or any ~~Lender hereunder~~ other Person (whether such claim arises out of the same or a related transaction or an unrelated transaction), the Seller shall be deemed to have received on such day a Collection of such Purchased Receivable in ~~fulfilling~~ the amount of such reduction, cancellation or adjustment. If on any day any of the representations or warranties in Section 4.01(g) is no longer true with respect to a Purchased Receivable or if the Seller has breached its ~~Commitment~~obligations under Section 5.01(j), then the Seller shall be deemed to have received on such day a Collection of such Purchased Receivable: (x) if such representation, warranty or covenant relates to the non-existence of any Adverse Claims, the Seller shall be deemed to have received a Collection of such Purchased Receivable in the dollar amount of the Adverse Claims attaching thereto and (y) if such representation or warranty relates to the validity or perfection of the transfer of such Purchased Receivable under this Receivables Purchase Agreement or the perfection of the Collateral Agent’s security interest in any Equipment as against the Obligor thereunder, then the Seller shall be deemed to have received a Collection of such Purchased Receivable in an amount equal to the Outstanding Balance thereof. In To the extent that any such deemed Collection reduces the Outstanding Balance of such Purchased Receivable to zero, then, upon the Seller’s payment to the Collateral Agent of such deemed Collection, the Collateral Agent shall re-assign to the Seller all of its right, title and interest in and to the relevant Purchased Receivable, the Contract under which such Purchased Receivable arose and the Related Security relating thereto. (e) Although the Originator, the Seller and the Purchasers agree that the Originator shall have no right to terminate, reject or not assume a Contract, if the Originator in its capacity as Servicer (or its successor in interest, including a trustee appointed under the Bankruptcy Code) terminates, rejects or does not assume a Contract, in whole or in part, prior to the expiration of the original term of such Contract, whether such rejection, termination or non-assumption is made pursuant to an equitable cause, statute, regulation, judicial proceeding or other applicable law (including, without limitation, Section 365 of the Bankruptcy Code), then (i) the Seller shall be deemed to have received Collections with respect to Purchased Receivables arising under such Contract in an amount equal to (A) in the event ~~that~~ of a ~~Lender is a Defaulting Lender~~prepayment or termination consented to by the Originator at the Obligor’s request, the ~~Administrative~~ excess, if any, of the Termination Amount over all amounts paid by the Obligor on account of such termination or (B) in the event of any other rejection or non-assumption the amount of the Outstanding Balance thereof that has not been, or may not be paid as a result of such rejection, termination or non-assumption. Upon the Seller’s payment of any such deemed Collections described in this Section 2.05(e), the Collateral Agent shall ~~be entitled to refrain from remitting settlement amounts~~ re-assign to the ~~Defaulting Lender and~~Seller all of its right, ~~instead~~title and interest in and to the relevant Purchased Receivable or Purchased Receivables, ~~shall be entitled to elect to implement~~ the ~~provisions set forth in Section 3.9~~Contracts under which such Purchased Receivable(s) arose and the Related Security relating thereto.

Appears in 1 contract

Sources: Lease Receivables Purchase Agreement (HPSC Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (American Biltrite Inc)

Settlement Procedures. (a) In order to administer the ~~Credit Facility~~ financing facility under this Agreement in an efficient manner and to minimize the transfer of funds between the Administrative Agent and the Revolving A Lenders, the Administrative Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of the Revolving A Lenders, the full amount of the Revolving A Loans requested or charged to ~~any Borrower’s loan account(s~~the Borrowers' Loan Account(s) or otherwise to be advanced by the Revolving A Lenders pursuant to the terms hereof, without requirement of prior notice to the Revolving A Lenders of the proposed Revolving ~~Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~A Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving A Loans made by the Administrative Agent on behalf of the Revolving A Lenders as provided in this ~~Section 3.6~~Section, the amount of each Revolving A Lender’s 's Pro Rata Share of ~~such~~ the outstanding Revolving A Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving A Loans as of 5:00 p.m. New York time on the Business Day immediately preceding the date of each settlement computation; ~~provided that~~ provided, that, the Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. The Administrative Agent shall deliver to each of the Revolving A Lenders after the end of each week, or at such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding Revolving A Loans for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by the Administrative Agent and received by a Revolving A Lender prior to 12:00 ~~noon~~noon New York time, then such Revolving A Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. New York time on the same Business Day and if received by a Revolving A Lender after 12:00 ~~noon~~noon New York time, then such Revolving A Lender shall make the settlement transfer by not later than 3:00 p.m. New York time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Revolving A Lender’s 's Pro Rata Share of the outstanding Revolving A Loans is more than such Revolving A Lender’s 's Pro Rata Share of the outstanding Revolving A Loans as of the end of the previous Settlement Period, then such Revolving A Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to the Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Revolving A Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Revolving A Loans in any Settlement Period is less than the amount of such Revolving A Lender’s 's Pro Rata Share of the outstanding Revolving A Loans for the previous Settlement Period, the Administrative Agent shall forthwith transfer to such Revolving A Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Revolving A Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the Administrative Agent. The Administrative Agent and each Revolving A Lender agrees to ~~▇▇▇▇~~ mark its books and records at the end of each Settlement Period to ~~show~~ ▇▇▇w at all times the dollar amount of its Pro Rata Share of the outstanding Revolving A Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Revolving A Lender shall only be entitled to receive interest on its Pro Rata Share of the Revolving A Loans to the extent such Revolving A Loans have been funded by such Revolving A Lender. Because the Administrative Agent on behalf of Revolving A Lenders may be advancing and/or may be repaid Revolving A Loans prior to the time when such Revolving A Lenders will actually ~~advance~~ make Revolving A Loans and/or be repaid such Revolving A Loans, interest with respect to Revolving A Loans shall be allocated by the Administrative Agent in accordance with the amount of Revolving A Loans actually advanced by and repaid to each Revolving A Lender and the Administrative Agent and shall accrue from and including the date such Revolving A Loans are so advanced to but excluding the date such Revolving A Loans are either repaid by the Borrowers or actually settled with the applicable Revolving A Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that the Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving A Loans by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Revolving A Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving ~~Loan~~A Loans, prior to the Administrative Agent’s 's disbursement of such Revolving ~~Loan~~ A Loans to such Borrower. In such event, all Revolving A Loans ~~under this Agreement~~ shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Revolving A Lender shall be responsible for any default by any other Revolving A Lender in the other Revolving A Lender's obligation to make any Revolving A Loans requested hereunder nor shall the Revolving A Credit Commitment of any Revolving A Lender be increased or decreased as a result of the default by any other Revolving A Lender in the other Revolving A Lender's obligation to make any Revolving A Loans hereunder. (d) If the Administrative Agent is not funding a particular Revolving A Loan to ~~a Borrower~~ the Borrowers (or to the Administrative Borrower for the benefit of such ~~Borrower~~Borrowers) pursuant to ~~subsections (a) and (b) above~~ this Section on any day~~, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above~~, the Administrative Agent may assume that each Revolving A Lender will make available to the Administrative Agent such Revolving A Lender’s 's Pro Rata Share of the Revolving A Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such ~~Borrower~~ Borrowers on such day. If the Administrative Agent makes such corresponding amount available to ~~a Borrower~~ the Borrowers and such corresponding amount is not in fact made available to the Administrative Agent by such Revolving A Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Revolving A Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s 's demand, at the ~~highest~~ interest rate ~~provided for in Section 3.1~~ then applicable to ~~Base Rate~~ Revolving A Loans. During the period in which such Revolving A Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount of the Revolving A Loans so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be deemed a Revolving A Loan made by the Administrative Agent for its own account. Upon any such failure by a Revolving A Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and the Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s 's receipt of such notice. A Revolving A Lender who fails to pay the Administrative Agent its Pro Rata Share of any Revolving A Loans made available by the Administrative Agent on such Revolving A Lender's behalf, or any Revolving A Lender who fails to pay any other amount owing by it to the Administrative Agent, is a "Defaulting Lender". The Administrative Agent shall not be obligated to transfer to a Defaulting Lender any payments received by the Administrative Agent for the Defaulting Lender's benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Lender shall instead be paid to, or retained by, the Administrative Agent. The Administrative Agent may hold and, in its discretion, relend to a Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Loan Documents, and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Revolving A Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Revolving A Credit Commitment of any Revolving A Lender, or relieve or excuse the performance by any Loan Party of its duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other Loan ~~Documents~~ Documents, shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that ~~any Borrower~~ the Borrowers may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Financing Agreement (Milacron Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Charming Shoppes Inc)

Settlement Procedures. (a) In Notwithstanding any other provision of this Agreement, and in order to administer the Loans and the Letter of Credit ~~Facility~~ Accommodations in an efficient manner and to ~~minimize~~ reduce the ~~transfer~~ number of ~~funds~~ fund transfers between Lenders and Agent, Borrowers, Lenders and Agent agree that Agent may (but shall not be obligated to), and Borrowers and Lenders hereby irrevocably authorize the ~~Administrative~~ Agent ~~and~~ to, fund, on behalf of the Lenders, ~~the Administrative Agent may, at its option~~Loans pursuant to Section 2.1, subject to the ~~terms of~~ procedures for settlement set forth in this Section ~~3.6~~6.7; provided, that, (i) other than to fund Loans to make ~~available, on behalf~~ payments to the issuer of ~~Lenders, the full amount~~ any of the ~~Revolving~~ Letter of Credit Accommodations or for costs and expenses as provided for herein, Agent shall in no event fund such Loans ~~requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by~~ if the Agent shall have received written notice from the Majority Lenders ~~pursuant~~ on the Business Day prior to the ~~terms hereof, without requirement of prior notice to Lenders~~ day of the proposed ~~Revolving Loans~~ Loan that one or more of the conditions precedent contained in Section 4 will not be satisfied on the day of the proposed Loan, and (~~each such advance by~~ ii) Agent shall not otherwise be required to determine that, or take notice whether, the ~~Administrative Agent, a “Settlement Advance”)~~conditions precedent in Section 4 have been satisfied. (b) With respect to (iall periods for which the Agent has funded Loans pursuant to Section 6.7(a) ~~all Swingline Loans and (ii) all Revolving Loans made by the Administrative Agent on behalf of Lenders as provided in this Section 3.6~~above, the amount of each Lender’s 's Pro Rata Share ~~of such~~ in the outstanding Loans and Letter of Credit Accommodations shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of ~~5:00 p.m.~~ the close of business on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. ~~The Administrative~~ Agent shall deliver to each of ~~the~~ Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement ~~Period”~~Period ). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Lender prior to 12:00 ~~noon,~~ noon (New York City time) then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. (New York City time) on the ~~same Business Day~~ day such summary statement was sent, and if such summary statement is sent by Agent and received by a Lender after 12:00 ~~noon~~noon (New York City time), ~~then~~ such Lender shall make ~~the~~ such settlement transfer by ~~not~~ no later than ~~3:00~~ 2:00 p.m. (New York City time) on the next Business Day following the date of ~~receipt~~the receipt of such summary statement. If, as of the end of any Settlement Period, the amount of a Lender’s 's Pro Rata Share of the outstanding Loans is more than such Lender’s 's Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. ~~Alternatively, if~~ If the amount of a Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s 's Pro Rata Share of the outstanding Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Lenders agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans ~~to the extent such Loans~~ which have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such Loan. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrowers, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this Section ~~3.6~~6.7. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent ~~may, at its option,~~ may at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s 's disbursement of such ~~Revolving~~ Loan to ~~Borrower~~Borrowers. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender's obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender's obligation to make a Loan requested hereunder. (d) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan ~~to a Borrower (or the Administrative Borrower for the benefit of such Borrower)~~ pursuant to ~~subsections (a) and (b~~Section 6.7(a) above on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s 's Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to ~~or for the benefit of such Borrower~~ Borrowers on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate LoansInterest Rate. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to ~~or for the benefit of any~~ a Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the Administrative Borrower~~ Borrowers of such failure and the Borrowers shall immediately pay such corresponding amount to ~~the Administrative~~ Agent for its own ~~account within five (5) Business Days of the Administrative Borrower’s receipt of such notice~~account. (e) Nothing in this Section ~~3.6~~ 6.7 or ~~elsewhere~~ otherwise in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that ~~any~~ Agent or Borrower may have against any Lender as a result of any default by ~~any~~ such Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9hereunder.

Appears in 1 contract

Sources: Loan and Security Agreement (Edison Brothers Stores Inc)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the~~ Administrative Agent and Lenders, ~~the~~ Administrative Agent may~~, at its option~~, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to any Borrower’s 's loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without any requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving Loans made by ~~the~~ Administrative Agent on behalf of Lenders as provided in this ~~Section 3.6~~Section, the amount of each Lender’s 's Pro Rata Share of ~~such~~ the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Loans as of ~~5:00~~ 3:00 p.m. California time on the Business Day immediately preceding the date of each settlement computation; provided that ~~the~~ Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The~~ Administrative Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the~~ Administrative Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by ~~the~~ Administrative Agent and received by a Lender prior to 12:00 ~~noon~~p.m. California time, then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 12:00 p.m. ~~on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m.~~ California time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s 's Pro Rata Share of the outstanding Revolving Loans is more than such Lender’s 's Pro Rata Share of the outstanding Revolving Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the~~ Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Lender’s 's Pro Rata Share of the outstanding Revolving Loans for the previous Settlement Period, ~~the~~ Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately 41 44 available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the~~ Administrative Agent. ~~The~~ Each of Administrative Agent and each Lender agrees to mar▇ ▇▇~~▇▇ its~~ s books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro ~~Rata~~ Rate Share of the outstanding Revolving Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Revolving Loans prior to the time when Lenders will actually advance and/or be repaid such Revolving Loans, interest with respect to Revolving Loans shall be allocated by ~~the~~ Administrative Agent in accordance with the amount of Revolving Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by ~~Borrowers~~ any Borrower or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the~~ Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the~~ Administrative Agent may apply such amounts repaid directly to any amounts made available by ~~the~~ any Administrative Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the~~ Administrative Agent ~~may, at its option,~~ may at any time require each Lender to provide ~~the~~ Administrative Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the~~ Administrative Agent’s 's disbursement of such ~~Revolving~~ Loan to any Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender's obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender's obligation to make a Loan hereunder. (d) If ~~the~~ Administrative Agent is not funding a particular ~~Revolving~~ Loan to a Borrower ~~(or the Administrative Borrower for the benefit of such Borrower)~~ pursuant to ~~subsections (a) and (b)~~ this Section above on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the~~ Administrative Agent may assume that each Lender will make available to ~~the~~ Administrative Agent such Lender’s 's Pro Rata Share of the Revolving Loan requested or otherwise made on such day and ~~the~~ Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to ~~or for the benefit of~~ such Borrower on such day. If ~~the~~ Administrative Agent makes such corresponding amount available to a such Borrower and such corresponding amount is not in fact made available to ~~the~~ Administrative Agent by such Lender, ~~the~~ Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the~~ Administrative Agent at the ~~Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest~~ interest rate provided for in Section 3.1 ~~applicable to Base Rate Loans~~hereof. During the period in which such Lender has not paid such corresponding amount to ~~the~~ Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the~~ Administrative Agent to ~~or for the benefit of any~~ a Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the~~ Administrative Agent for its own account. Upon any such failure by a Lender to pay ~~the~~ Administrative Agent, ~~the~~ Administrative Agent shall promptly thereafter notify ~~the Administrative~~ such Borrower of such failure and ~~Borrowers~~ such Borrower shall immediately pay such corresponding amount to ~~the~~ Administrative Agent for its own ~~account within five (5) Business Days~~ account. A Lender who fails to pay Administrative Agent its Pro Rata Share of any Loans made available by the Administrative ~~Borrower’s receipt~~ Agent on such Lender's 42 45 behalf, or any Lender who fails to pay any other amount owing by its Administrative Agent, is a "Defaulting Lender". Administrative Agent shall not be obligated to transfer to a Defaulting Lender any payments made by or on behalf of any Borrower or any Obligor to Administrative Agent for the Defaulting Lender's benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Administrative Agent. Administrative Agent may hold and, in its discretion, relend to a Borrower the amount of all such payments received or retained by it for the account of such ~~notice~~Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" and such Lender's Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by any Borrower or Obligor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the~~ Administrative Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (Bell Microproducts Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Pillowtex Corp)

Settlement Procedures. (a) ~~In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between the Administrative Agent and Lenders, the Administrative~~ The Servicing Agent may~~, at its option, subject to the terms of this Section 3.6, make available~~, on behalf of the Lenders, disburse funds to Borrower for Bridge Loan Advances requested by Borrower. Each Lender shall reimburse the ~~full~~ Servicing Agent at the time set forth in Section 2.5(b) for all funds disbursed on its behalf by the Servicing Agent, or if the Servicing Agent so requests, each Lender will remit to the Servicing Agent its pro rata share of any Bridge Loan Advance before the Servicing Agent disburses the same to Borrower. If the Servicing Agent elects to require that each Lender make funds available to the Servicing Agent prior to a disbursement by the Servicing Agent to Borrower, the Servicing Agent shall promptly advise each Lender, by 6:00 p.m. (Chicago time) on the Business Day before the day on which the Bridge Loan Advance is to be made, by telephone (but not voicemail) of the amount of such pro rata share of the ~~Revolving Loans~~ Bridge Loan Advance requested ~~or charged~~ by Borrower, and, by no later than 10:00 a.m. (Chicago time) of the borrowing date applicable thereto, shall send to ~~any~~ each Lender by telecopy a facsimile of the Borrower~~’s loan account(s) or otherwise to be advanced by Lenders pursuant~~ 's Payment/Advance Form requesting such advance, and such Lender shall make available to the ~~terms hereof~~Servicing Agent such pro-rata share of such requested Bridge Loan Advance, ~~without requirement of prior notice~~ in same day funds, by wire transfer to the Servicing Agent's account specified in writing to the Lenders ~~of the proposed Revolving Loans (each such advance~~ by the ~~Administrative Agent~~Servicing Agent prior to 1:00 p.m. (Chicago time), ~~a “Settlement Advance”)~~on the borrowing date applicable thereto. (b) ~~With respect~~ Unless the Servicing Agent shall have been notified in writing by any Lender prior to the borrowing date that such Lender will not make the amount that would constitute its pro rata share of the borrowing (ias referred to in Section 2.1.1 above) ~~all Swingline Loans and (ii) all Revolving Loans made by~~ on such date available to the ~~Administrative Agent on behalf of Lenders as provided in this Section 3.6~~Servicing Agent, the Servicing Agent may assume that such Lender has made such amount ~~of each Lender’s Pro Rata Share of such outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on~~ available to the ~~basis of the amount of the outstanding Loans as of 5:00 p.m.~~ Servicing Agent on the Business Day immediately preceding the date of each settlement computation; provided that the Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. The Administrative Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by the Administrative Agent and received by a Lender prior to 12:00 noon, then such Lender shall make the settlement transfer described in this Section 3.6 by no later than 3:00 p.m. on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m. on the next Business Day following the date of ~~receipt. If, as~~ Borrower's submission of the ~~end of any Settlement Period~~Payment/Advance Form, and the Servicing Agent may, in reliance upon such assumption, make available to Borrower a corresponding amount. If such amount ~~of a Lender’s Pro Rata Share of~~ is not made available to the ~~outstanding Loans is more than~~ Servicing Agent by 1:00 p.m. (Chicago time) on such ~~Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period~~date, ~~then~~ such Lender shall ~~forthwith (but in no event later than the time set forth in the preceding sentence) transfer~~ pay to the ~~Administrative Agent by wire transfer~~ Servicing Agent, on demand, in ~~immediately available funds~~ addition to such pro rata share of such borrowing, an amount equal to the ~~amount~~ product of (i) the ~~increase. Alternatively~~daily average Federal Funds Effective Rate during such period, ~~if the amount of a Lender’s~~ times (~~other than a Defaulting Lender~~ii) ~~Pro Rata Share of the outstanding Loans in any Settlement Period is less than~~ the amount of such ~~Lender’s Pro Rata Share~~ pro rata share of such borrowing, times (iii) a fraction the numerator of which is the number of days that elapse from and including such date to the date on which such pro rata share of such borrowing shall have become immediately available to the Servicing Agent and the denominator of which is 360. A certificate of the ~~outstanding Loans for~~ Servicing Agent submitted to any Lender with respect to any amounts owing under this Section shall be conclusive in the ~~previous Settlement Period,~~ absence of manifest error. If such pro rata share of such borrowing is not made available to the ~~Administrative~~ Servicing Agent ~~shall forthwith transfer to~~ by such Lender by ~~wire transfer~~ 1:00 p.m. (Chicago time) on the third Business Day after such date, the Servicing Agent shall be entitled to recover, on demand, from the Borrower, such amount with interest thereon at the rate per annum applicable to Bridge Loan Advance hereunder. For purposes of this Section, any amounts received by the Servicing Agent on any Business Day after 1:00 p.m. (Chicago time) shall be deemed to be received by the Servicing Agent on the immediately succeeding Business Day. (c) The Servicing Agent shall maintain an account on its books in ~~immediately available funds~~ the ~~amount~~ name of Borrower (the ~~decrease~~"Loan Account"). All Credit Extensions made by the Lenders to Borrower or for Borrower's account and all other monetary Obligations will be charged to the Loan Account. All amounts received by Servicing Agent from Borrower or for Borrower's account will be credited to the Loan Account for the account of each Lender. The ~~obligation~~ Servicing Agent will send Borrower a monthly statement reflecting the activity in the Loan Account, and each such monthly statement shall be an account stated between Borrower and Servicing Agent for the benefit of each of the Lenders ~~to transfer such funds~~ and ~~effect such settlement~~ shall be ~~irrevocable~~ final conclusive and ~~unconditional~~ binding absent manifest error. (d) The Servicing Agent will promptly pay to the other Lenders such Lenders' pro rata shares of any principal payment and ~~without recourse to or warranty~~ of any payment of any other Obligations after such payments are received by the ~~Administrative Agent~~Servicing Agent from Borrower. ~~The Administrative Agent and each Lender agrees to ▇▇▇▇ its books and records at the end~~ For purposes of ~~each Settlement Period to show at all times the dollar amount of its Pro Rata Share~~ this subsection, "promptly" means by 4:00 p.m. Chicago time of the ~~outstanding Loans~~ same Business Day for amounts the Servicing Agent receives by 10:00 a.m. Chicago time, and ~~Letters of Credit~~by 12:00 p.m. Chicago time on the immediately succeeding Business Day for amounts the Servicing Agent receives after 10:00 a.m. Chicago time. ~~Each Lender~~ For any amounts that the Servicing Agent does not make payments owing under this subsection promptly to the other Lenders, the other Lenders shall ~~only~~ be entitled to ~~receive interest~~ receive, on ~~its Pro Rata Share of~~ demand, from the ~~Loans~~ Servicing Agent, in addition to such payments, an amount equal to the ~~extent~~ product of (i) the daily average Federal Funds Effective Rate during such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loansperiod, ~~interest with respect to Loans shall be allocated by the Administrative Agent in accordance with~~ times (ii) the amount of ~~Loans actually advanced by and repaid~~ such payments due from Servicing Agent to ~~each Lender and~~ such other Lender, times (iii) a fraction the ~~Administrative Agent and shall accrue~~ numerator of which is the number of days that elapse from and including the date ~~such Loans are so advanced~~ on which prompt payment is due from the Servicing Agent to ~~but excluding~~ the date on which the Servicing Agent shall have made such ~~Loans are either repaid by Borrowers or actually settled with~~ payment in immediately-available funds to such other Lender and the ~~applicable Lender as described in~~ denominator of which is 360. Notwithstanding the foregoing, if the Servicing Agent does not make payments owing under this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior subsection to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such Loan. (c) To the extent that the Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving Loans by a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)other Lenders within three Business Days after prompt payment is due, the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the other Lenders simultaneously and proportionately to their Pro Rata Shares. (d) If the Administrative Agent is not funding a particular Revolving Loan to a Borrower (or the Administrative Borrower for the benefit of such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume that each Lender will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to ~~recover~~ recover, on demand, from the Servicing Agent, the amount of such ~~corresponding amount on demand from such Lender together~~ payment with interest thereon ~~for each day from the date such payment was due until the date such amount is paid to the Administrative Agent~~ at the ~~Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest~~ rate ~~provided for in Section 3.1~~ per annum applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Bridge Loan Documents, the amount so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such noticeAdvance hereunder. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (Clarus Corp)

Settlement Procedures. (a) In order to administer the ~~Credit Facility~~ credit facility provided hereunder in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may~~, at its option~~, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to ~~any Borrower’s~~ Borrowers' loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without any requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving Loans made by ~~the Administrative~~ Agent on behalf of Revolving Loan Lenders as provided in this ~~Section 3.6~~Section, the amount of each Revolving Loan Lender’s 's Pro Rata Share of ~~such~~ the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Loans as of 5:00 p.m. Los Angeles time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ Agent shall deliver to each of the Revolving Loan Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Revolving Loan Lender prior to ~~12:00 noon~~2:00 p.m. Los Angeles time, then such Revolving Loan Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. ~~on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m.~~ Los Angeles time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s 's Pro Rata Share of the outstanding Revolving Loans is more than such Lender’s 's Pro Rata Share of the outstanding Revolving Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Lender’s 's Pro Rata Share of the outstanding Revolving Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Revolving Loan Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Revolving Loan Lenders agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro ~~Rata~~ Rate Share of the outstanding Revolving Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the ~~Administrative~~ Agent on behalf of Revolving Loan Lenders may be advancing and/or may be repaid Revolving Loans prior to the time when Lenders will actually advance and/or be repaid such Revolving Loans, interest with respect to Revolving Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Revolving Loans actually advanced by and repaid to each Revolving Loan Lender and the ~~Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by ~~Borrowers~~ any Borrower or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~any Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ any Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent ~~may, at its option,~~ may at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s 's disbursement of such ~~Revolving~~ Loan to any Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender's obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender's obligation to make a Loan hereunder. (d) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan to ~~a Borrower (or the Administrative Borrower for the benefit of such Borrower)~~ Borrowers pursuant to ~~subsections (a) and (b) above~~ this Section on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s 's Pro Rata Share of the Revolving Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to ~~or for the benefit of such Borrower~~ Borrowers on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to ~~a Borrower~~ Borrowers and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the ~~Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest~~ interest rate provided for in Section 3.1 ~~applicable to Base Rate Loans~~hereof. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to ~~or for the benefit of~~ any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the Administrative Borrower~~ Borrowers of such failure and Borrowers shall immediately pay such corresponding amount to ~~the Administrative~~ Agent for its own account. A Lender who fails to pay Agent its Pro Rata Share of any Loans made available by the Agent on such Lender's behalf, or any Lender who fails to pay any other amount owing to Agent, is a "Defaulting Lender". Agent shall not be obligated to transfer to a Defaulting Lender any payments made by or on behalf of any Borrower or any Obligor to Agent for the Defaulting Lender's benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, re-lend to any Borrower the amount of all such payments received or retained by it for the account ~~within five (5) Business Days of the Administrative Borrower’s receipt~~ of such ~~notice~~Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a Lender and such Defaulting Lender's Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by any Borrower or any Obligor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (Pc Mall Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Farmer Brothers Co)

Appears in 1 contract

Sources: Loan and Security Agreement (C&d Technologies Inc)

Settlement Procedures. ~~(a) In~~ Notwithstanding any other provision of this Agreement, and in order to administer the Credit Facility in an efficient manner and to ~~minimize~~ reduce the ~~transfer~~ number of ~~funds~~ fund transfers between Lenders and Agent, Borrowers, Lenders and Agent agree that Agent may (but shall not be obligated to), and Borrowers and Lenders hereby irrevocably authorize the ~~Administrative~~ Agent ~~and~~ to, fund, on behalf of the Lenders, ~~the Administrative Agent may, at its option~~Loans pursuant to Section 3.1 and Letter of Credit Accommodations pursuant to Section 3.2, subject to the ~~terms of~~ procedures for settlement set forth in this Section ~~3.6~~3.12; provided, that, (i) other than to fund Revolving Loans to make ~~available, on behalf~~ payments to the issuer of ~~Lenders, the full amount~~ any of the ~~Revolving~~ Letter of Credit Accommodations or for costs and expenses as provided for herein, Agent shall in no event fund such Loans ~~requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by~~ if the Agent shall have received written notice from the Majority Lenders ~~pursuant~~ on the Business Day prior to the ~~terms hereof, without requirement of prior notice to Lenders~~ day of the proposed ~~Revolving Loans (each such advance by~~ Loan that one or more of the ~~Administrative Agent~~conditions precedent contained in Section 4.2 will not be satisfied on the day of the proposed Loan, ~~a “Settlement Advance”). (b) With respect to (i) all Swingline Loans~~ and (ii) Agent shall not otherwise be required to determine that the conditions precedent in Section 4.2 have been satisfied. (bi With respect to all ~~Revolving~~ periods for which the Agent has funded Loans ~~made by the Administrative Agent on behalf of Lenders as provided in this~~ pursuant to Section ~~3.6~~3.12(a) above, the amount of each Lender’s 's Pro Rata Share ~~of such~~ in the outstanding Loans and Letter of Credit Accommodations shall be computed weekly, and shall be adjusted upward or downward on the basis of the average amount of the outstanding Loans ~~as of 5:00 p.m. on~~ for the Business ~~Day~~ Days of the week immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. ~~The Administrative~~ Agent shall deliver to each of ~~the~~ Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Lender prior to 12:00 ~~noon,~~ noon (New York City time) then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. (New York City time) on the ~~same Business Day~~ day such summary statement was sent, and if such summary statement is sent by Agent and received by a Lender after 12:00 ~~noon~~noon (New York City time), ~~then~~ such Lender shall make ~~the~~ such settlement transfer by ~~not~~ no later than ~~3:00~~ 2:00 p.m. (New York City time) on the next Business Day following the date of ~~receipt~~the receipt of such summary statement. If, as of the end of any Settlement Period, the amount of a Lender’s 's Pro Rata Share of the outstanding Loans is more than such Lender’s 's Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. ~~Alternatively, if~~ If the amount of a Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s 's Pro Rata Share of the outstanding Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Lenders agrees to ~~▇▇▇▇~~ mark its books and records at the end of each ~~Settlement Period~~ Settlemen▇ ▇▇riod to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans ~~to the extent such Loans~~ which have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such Loan. (c) To the extent that the Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving Loans by a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b), the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. (d) If the Administrative Agent is not funding a particular Revolving Loan to a Borrower (or the Administrative Borrower for the benefit of such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume that each Lender will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such notice. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Revolving Credit and Security Agreement (Salant Corp)

Appears in 1 contract

Sources: Loan and Security Agreement (Delta Apparel Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Commerce Energy Group Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Handy & Harman Ltd.)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, including the Swing Line Lender, the full amount of the Revolving Loans or Swing Line Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed Revolving ~~Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving Loans made by ~~the Administrative~~ Agent on behalf of ~~Lenders as provided in this Section 3.6~~Lenders, the amount of each Lender’s Pro Rata Share of ~~such~~ the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Loans as of 5:00 p.m. New York City time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ With respect to Swing Line Loans made by Swing Line Lender or Agent on behalf of Swing Line Lender, Swing Line Lender (or Agent on behalf of Swing Line Lender) shall settle on the Swing Line Loans on a weekly basis or such other more frequent basis as Agent may from time to time determine. Agent (or Swing Line Lender as to Swing Line Loans) shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent (or Swing Line Lender as to Swing Line Loans) shall determine, a summary statement of the amount of outstanding Loans (whether Revolving Loans, Swing Line Loans or both, as applicable) for such period (such week or ~~lesser~~ other period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by Agent (or Swing Line Lender in the ~~Administrative Agent~~ case of Swing Line Loans) and received by a Lender prior to 12:00 ~~noon~~p.m. New York City time, then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. New York City time on the same Business Day and if received by a Lender after 12:00 ~~noon~~p.m. New York City time, then such Lender shall make the settlement transfer by not later than 3:00 p.m. New York City time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Revolving Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. Each Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to Swing Line Lender (or upon its request to Agent) by wire transfer in immediately available funds the amount of such Lender’s Pro Rata Share of the outstanding Swing Line Loans as set forth in the summary statement provided to such Lender as provided above. Amounts transferred to Swing Line Lender (or Agent as the case may be) in respect to a settlement of Swing Line Loans shall be applied to the payment of the Swing Line Loans and shall constitute Revolving Loans of such Lenders. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by Agent and may occur at any time an Event of Default exists or has occurred and is continuing and whether or not the ~~Administrative Agent~~conditions set forth in Section 4.2 are satisfied (except if there is an Event of Default under Section 10.1(g) and 10.1(h), in which case the funds shall be in respect of each Lender’s participation). ~~The Administrative~~ Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the ~~Administrative~~ Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the ~~Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent may, at its option, at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s disbursement of such ~~Revolving~~ Loan to a Borrower. In such event, Agent shall notify each Lender promptly after Agent’s receipt of the request for the Loans from a Borrower (or Administrative Borrower on behalf of such Borrower) or any deemed request hereunder and each Lender shall provide its Pro Rata Share of such requested Loan to the account specified by Agent in immediately available funds not later than 2:00 p.m. New York City time on the requested funding date, so that all ~~Revolving~~ such Loans ~~under this Agreement~~ shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) If Upon the ~~Administrative~~ making of any Loan by Agent ~~is not funding a particular Revolving Loan~~ as provided herein, without further action by any party hereto, each Lender shall be deemed to ~~a Borrower (~~have irrevocably and unconditionally purchased and received from Agent, without recourse or warranty, an undivided interest and participation to the ~~Administrative Borrower for the benefit~~ extent of such ~~Borrower~~Lender’s Pro Rata Share in such Loan. To the extent that there is no settlement in accordance with the terms hereof, Agent may at any time require the Lenders to fund their participations. From and after the date, if any, on which any Lender has funded its participation in any such Loan, Agent shall promptly distribute to such Lender, such Lender’s Pro Rata Share of all payments of principal and interest received by Agent in respect of such Loan. (e) As to any Loan funded by Agent on behalf of a Lender (including Swing Line Lender) whether pursuant to ~~subsections (a~~Sections 6.10(a), 6.10(b) ~~and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c~~or 6.10(c) above, ~~the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day ~~and~~ in the ~~Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount~~ case of Loans funded pursuant to ~~be made available to~~ Section 6.10(c) above or ~~for~~ otherwise on the ~~benefit of such Borrower on such day~~applicable settlement date. If ~~the Administrative~~ Agent makes ~~such corresponding amount~~ amounts available to a Borrower and such corresponding ~~amount is~~ amounts are not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. New York City time on that day by each of the three leading brokers of Federal funds transactions in New York selected by Agent) and if such amounts are not paid within three (3) days of ~~the Administrative~~ Agent’s demand, at the highest ~~interest rate~~ Interest Rate provided for in Section 3.1 hereof applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. . (f) Upon any ~~such~~ failure by a Lender to pay Agent (or Swing Line Lender) pursuant to the ~~Administrative Agent~~settlement described in Section 6.10(b) above or to pay Agent pursuant to Section 6.10(c), ~~the Administrative~~ 6.10(d) or Section 6.10(e), Agent shall promptly thereafter notify ~~the~~ Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to ~~the Administrative~~ Agent for its own account within five (5) Business Days of ~~the~~ Administrative Borrower’s receipt of such notice. (eg) Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero (0). So long as there is a Defaulting Lender, the maximum amount of the Loans and Letters of Credit shall not exceed the aggregate amount of the Commitments of the Lenders that are not Defaulting Lenders plus the Pro Rata Share of the Defaulting Lender (determined immediately prior to its being a Defaulting Lender) of the Loans and Letters of Credit outstanding as of the date that the Defaulting Lender has become a Defaulting Lender. At any time that there is a Defaulting Lender, payments received for application to the Obligations payable to Lenders in accordance with the terms of this Agreement shall be distributed to Lenders based on their Pro Rata Shares calculated after giving effect to the reduction of the Defaulting Lender’s Commitment to zero as provided herein or at Agent’s option, Agent may instead receive and retain such amounts that would be otherwise attributable to the Pro Rata Share of a Defaulting Lender (which for such purpose shall be such Pro Rata Share as in effect immediately prior to its being a Defaulting Lender). To the extent that Agent elects to receive and retain such amounts, Agent may hold such amounts (which shall not accrue interest) and, in its reasonable discretion, relend such amounts to a Borrower. To the extent that Agent exercises its option to relend such amounts, such amounts shall be treated as Revolving Loans for the account of Agent in addition to the Revolving Loans that are made by the Lenders other than a Defaulting Lender based on their respective Pro Rata Shares as calculated after giving effect to the reduction of such Defaulting Lender’s Commitment to zero (0) as provided herein but shall be repaid in the same order of priority as the principal amount of the Loans on a pro rata basis for purposes of Section 6.4 hereof. Agent shall determine whether any Revolving Loans requested shall be made from relending such amounts or from Revolving Loans from the Lenders (other than a Defaulting Lender) and any allocation of requested Revolving Loans between them. The rights of a Defaulting Lender shall be limited as provided herein until such time as the Defaulting Lender has made all payments to Agent of the amounts that it had failed to pay causing it to become a Defaulting Lender and such Lender is otherwise in compliance with the terms of this Agreement (including making any payments as it would have been required to make as a Lender during the period that it was a Defaulting Lender other than in respect of the principal amount of Revolving Loans, which payments as to the principal amount of Revolving Loans shall be made based on the outstanding balance thereof on the date of the cure by Defaulting Lender or at such other time thereafter as Agent may specify) or has otherwise provided evidence in form and substance satisfactory to Agent that such Defaulting Lender will be able to fund its Pro Rata Share (as in effect immediately prior to its being a Defaulting Lender) in accordance with the terms hereof. Upon the cure by Defaulting Lender of the event that is the basis for it to be a Defaulting Lender by making such payment or payments and such Lender otherwise being in compliance with the terms hereof, such Lender shall cease to be a Defaulting Lender and shall only be entitled to payment of interest accrued during the period that such Lender was a Defaulting Lender to the extent previously received and retained by Agent from or for the account of Borrowers on the funds constituting Loans funded by such Lender prior to the date of it being a Defaulting Lender (and not previously paid to such Lender) and shall otherwise, on and after such cure, make Loans and settle in respect of the Loans and other Obligations in accordance with the terms hereof. The existence of a Defaulting Lender and the operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by any Borrower or Guarantor of its duties and obligations hereunder (including, but not limited to, the obligation of such Borrower or Guarantor to make any payments hereunder, whether in respect of Loans by a Defaulting Lender or otherwise). (h) Notwithstanding anything to the contrary contained in this Agreement, in the event that there is a Defaulting Lender, if there are any Letters of Credit outstanding, within three (3) Business Days after the written request of the applicable Issuing Bank, Borrowers shall pay to Agent an amount equal to the Pro Rata Share of the Defaulting Lender (calculated as in effect immediately prior to such Lender becoming a Defaulting Lender) of the Letter of Credit Obligations then outstanding to be held by Agent on terms and conditions satisfactory to Agent and Issuing Banks as cash collateral for the Obligations and for so long as there is a Defaulting Lender, Issuing Banks shall not be required to issue any Letter of Credit, or increase or extend or otherwise amend any Letter of Credit, unless upon the request of the applicable Issuing Bank, Agent has cash collateral from Borrowers in an amount equal to the Pro Rata Share of the Defaulting Lender (calculated as in effect immediately prior to such Lender becoming a Defaulting Lender) of the Letter of Credit Obligations outstanding after giving effect to any such requested Letter of Credit (or increase, extension or other amendment) to be held by Agent on its behalf on terms and conditions satisfactory to Agent and such Issuing Bank or there are other arrangements reasonably satisfactory to such Issuing Bank with respect to the participation in Letters of Credit by such Defaulting Lender. Such cash collateral shall be applied first to the Letter of Credit Obligations before application to any other Obligations, notwithstanding anything to the contrary contained in Section 6.4 hereof. (i) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against ~~any~~ a Lender as a result of any default by ~~any~~ such Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (Charming Shoppes Inc)

Settlement Procedures. (a) In order to administer the Revolving Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to ~~any Borrower’s~~ Borrowers’ loan ~~account(s)~~ accounts or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving~~ Loans made by ~~the Administrative~~ Agent on behalf of Lenders as provided in this ~~Section 3.6~~Section, the amount of each Lender’s Pro Rata Share of ~~such~~ the outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. New York time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Lender prior to 12:00 ~~noon~~p.m. New York time, then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. New York time on the same Business Day and if received by a Lender after 12:00 ~~noon~~p.m. New York time, then such Lender shall make the settlement transfer by ~~not~~ no later than ~~3:00~~ 2:00 p.m. New York time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, then, if the ~~Administrative~~ summary statement is prepared and delivered to Lenders by Agent prior to 12:00 p.m. New York time, then Agent shall ~~forthwith~~ make the transfer described in this Section by no later than 3:00 p.m. New York time on the same Business Day and if prepared and delivered to ~~such Lender~~ Lenders by Agent after 12:00 p.m. New York time, then Agent shall make the transfer by no later than 3:00 p.m. New York time on the next Business Day following the date of receipt, by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders and Agent to transfer such funds and effect such settlement shall be ~~irrevocable and unconditional and without recourse to or warranty by the Administrative Agent~~irrevocable. ~~The Administrative~~ Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because ~~the Administrative~~ Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and ~~the Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent may, at its option, at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s disbursement of such ~~Revolving~~ Loan to ~~Borrower~~Borrowers. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment, as the case may be, of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan to ~~a Borrower (or the Administrative Borrower for the benefit of such Borrower)~~ Borrowers pursuant to ~~subsections (a~~Section 6.10(a) ~~and (b) above~~ hereof on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of ~~such Borrower~~ Borrowers on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to ~~a Borrower~~ Borrowers and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Agent) and if such amounts are not paid within three (3) days of ~~the Administrative~~ Agent’s demand, at the highest interest rate provided for in Section 3.1 hereof applicable to ~~Base Rate~~ such Loans. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to or for the benefit of ~~any Borrower~~ Borrowers shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the Administrative Borrower~~ Borrowers of such failure and Borrowers shall pay such corresponding amount to ~~the Administrative~~ Agent for its own account within five (5) Business Days of ~~the Administrative Borrower’s~~ Borrowers’ receipt of such notice. . The term “Defaulting Lender” shall mean (ei) ~~Nothing~~ any Lender that has failed to fund any portion of the Loans or participations in ~~this Section 3.6~~ Letter of Credit Obligations required to be funded by it hereunder within one (1) Business Day of the date required to be funded by it hereunder, or ~~elsewhere~~ has otherwise failed to pay over to Agent or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, and such failure has not been cured by the making of such funding or payment over to Agent or such Lender by such Lender with such one (1) Business Day period, (ii) any Lender that has notified Agent, any Lender, Issuing Bank, or any Borrower or Guarantor in writing that it will not or does not intend to comply with any of its funding obligations under this Agreement (and such Lender has not retracted such notification in writing) or has made a public statement in writing to the effect that it will not or does not intend to comply with its funding obligations under this Agreement (and such Lender has not retracted such public statement in writing), or (iii) any Lender that becomes or is insolvent or has a parent company that has become or is insolvent or becomes the subject of a bankruptcy or insolvency proceeding, or has a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment and has not obtained all required orders, approvals or consents of any court or other Governmental Authority to continue to fulfill its obligations hereunder, in form and substance satisfactory to Agent. Agent shall not be obligated to transfer to a Defaulting Lender any payments received by Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, relend to Borrowers the amount of all such payments received or retained by it for the account of such Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other ~~Loan Documents~~ Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to ~~require~~ be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the ~~Administrative Agent to advance funds on behalf~~ Commitment of any ~~Lender (including~~Lender, ~~without limitation, a Defaulting Lender)~~ or to relieve ~~any Lender from its obligation to fulfill its Commitment hereunder~~ or ~~to prejudice any rights that~~ excuse the performance by any Borrower ~~may have against~~ or any ~~Lender as a result~~ Obligor of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9their duties and obligations hereunder.

Appears in 1 contract

Sources: Loan and Security Agreement (New York & Company, Inc.)

Appears in 1 contract

Sources: Loan Agreement (Merisel Inc /De/)

Appears in 1 contract

Sources: Loan and Security Agreement (Aep Industries Inc)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to ~~any Borrower’s~~ Borrowers’ loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving~~ Loans made by ~~the Administrative~~ Agent on behalf of Lenders as provided in this ~~Section 3.6~~Section, the amount of each Lender’s Pro Rata Share of ~~such~~ the outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. (Atlanta, Georgia time) on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Lender prior to 12:00 ~~noon~~p.m. (Atlanta, Georgia time), then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. (Atlanta, Georgia time) on the same Business Day and if received by a Lender after ~~12:00 noon~~such time, then such Lender shall make the settlement transfer by ~~not~~ no later than 3:00 p.m. (Atlanta, Georgia time) on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because ~~the Administrative~~ Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and ~~the Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrowers, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent may, at its option, at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s disbursement of such ~~Revolving~~ Loan to ~~Borrower~~Borrowers. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) If Unless Agent receives notice from a Lender prior to 12:00 p.m. (Atlanta, Georgia time) on the ~~Administrative~~ date of any Loan, that such Lender will not make available as and when required hereunder to Agent ~~is not funding a particular Revolving Loan to~~ for the account of a Borrower (or ~~the~~ Administrative Borrower for the benefit of such Borrower) ~~pursuant to subsections (a) and (b) above on any day~~the amount of that Lender’s Pro Rata Share of the Loan or other advance, ~~but is requiring~~ Agent may assume that each Lender has made or will make such amount available to ~~provide the Administrative~~ Agent ~~with~~ in immediately available funds on the date of such ~~Revolving~~ Loan ~~as provided in subsection (c) above, the Administrative~~ or advance and Agent may ~~assume that each Lender will~~ (but shall not be so required), in reliance upon such assumption, make available to Borrowers on such date a corresponding amount. If any Lender shall not have made its full amount available to Agent in immediately available funds and if Agent in such circumstances has made available to Borrowers such amount, that Lender shall on the ~~Administrative~~ Business Day following such Funding Date make such amount available to Agent, together with interest at the Defaulting Lender Rate for each day during such period. A notice submitted by Agent to any Lender with respect to amounts owing under this Section 6.9(b) shall be conclusive, absent manifest error. If such amount is so made available, such payment to Agent shall constitute such Lender’s payment of its Pro Rata Share of ~~the Revolving~~ such Loan ~~requested or otherwise made on~~ for all purposes of this Agreement. If such ~~day and the Administrative Agent may, in its discretion, but shall~~ amount is not ~~be obligated to, cause a corresponding amount to be~~ made available to ~~or for~~ Agent on the ~~benefit~~ Business Day following the date of such Loan or advance, Agent will notify Administrative Borrower on of such ~~day. If the Administrative~~ failure to fund and, upon demand by Agent, Borrowers shall pay such amount to Agent ~~makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender~~for Agent’s account, ~~the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender~~ together with interest thereon for each day ~~from~~ elapsed since the date of such ~~payment was due until the date such amount is paid~~ Loan, at a rate per annum equal to the ~~Administrative Agent~~ interest rate applicable at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount time to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by the Administrative Agent for its own account. Upon any advances composing such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such noticeLoan. (e) ~~Nothing~~ Notwithstanding anything to the contrary in this Section ~~3.6 or elsewhere~~ 6.9, in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, ~~the Administrative~~ Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in this Section ~~3.9~~6.9(e). Agent shall not be obligated to transfer to a Defaulting Lender any payments made by a Borrower to Agent (including any principal, interest or fees) for the Defaulting Lender’s benefit or any collections or proceeds of Collateral that would otherwise be remitted hereunder to the Defaulting Lender, and, in the absence of such transfer to the Defaulting Lender, Agent shall transfer any such payments, first, to Agent to the extent of any Loans that were made by Agent and that were required to be, but were not, paid by the Defaulting Lender; second, to the Issuing Bank, to the extent of the portion of a payment made by Issuing Bank pursuant to a Letter of Credit that was required to be, but was not, paid by the Defaulting Lender; third, to each non-Defaulting Lender ratably in accordance with their Commitments (but, in each case, only to the extent that such Defaulting Lender’s portion of a Loan (or other funding obligation) was funded by such other non-Defaulting Lender); fourth, to a suspense account maintained by Agent, the proceeds of which shall be retained by Agent and may be made available to be re-advanced to or for the benefit of Borrowers as if such Defaulting Lender had made its portion of Loans (or other funding obligations) hereunder; and fifth, from and after the date on which all other Obligations have been paid in full, to such Defaulting Lender in accordance with the twelfth clause of Section 6.4(b). Subject to the foregoing, Agent may hold and, in its discretion, re-lend to Borrowers for the account of such Defaulting Lender the amount of all such payments received and retained by Agent for the account of such Defaulting Lender. Solely for the purposes of voting or consenting to matters with respect to the Financing Agreements (including the calculation of Pro Rata Share in connection therewith) and for the purpose of calculating the fee payable under Section 3.2(b), such Defaulting Lender shall be deemed not to be a “Lender” and such Lender’s Commitment shall be deemed to be zero. The provisions of this Section 6.9(e) shall remain effective with respect to such Defaulting Lender until the earlier of (y) the date on which all of the non-Defaulting Lenders, Agent, Issuing Lender, and Borrowers shall have waived, in writing, the application of this Section 6.9(e) to such Defaulting Lender, or (z) the date on which such Defaulting Lender makes payment of all amounts that it was obligated to fund hereunder, pays to Agent all amounts owing by Defaulting Lender in respect of the amounts that it was obligated to fund hereunder, and, if requested by Agent, provides adequate assurance of its ability to perform its future obligations hereunder. The operation of this Section 6.9(e) shall not be construed to increase or otherwise affect the Commitment of any Lender, to relieve or excuse the performance by such Defaulting Lender or any other Lender of its duties and obligations hereunder, or to relieve or excuse the performance by any Borrower of its duties and obligations hereunder to Agent, Issuing Bank, or to the Lenders other than such Defaulting Lender. Any failure by a Defaulting Lender to fund amounts that it was obligated to fund hereunder shall constitute a material breach by such Defaulting Lender of this Agreement and shall entitle Borrowers, at their option, upon written notice to Agent, to arrange for a substitute Lender to assume the Commitment of such Defaulting Lender, such substitute Lender to be reasonably acceptable to Agent. In connection with the arrangement of such a substitute Lender, the Defaulting Lender shall have no right to refuse to be replaced hereunder, and agrees to execute and deliver a completed form of Assignment and Acceptance in favor of the substitute Lender (and agrees that it shall be deemed to have executed and delivered such document if it fails to do so) subject only to being paid its share of the outstanding Obligations (other than Banking Relationship debt, but including (1) all interest, fees, and other amounts that may be due and payable in respect thereof, and (2) an assumption of its Pro Rata Share of its participation in the Letters of Credit); provided, however, that any such assumption of the Commitment of such Defaulting Lender shall not be deemed to constitute a waiver of any Lenders’ or any Borrower’s rights or remedies against any such Defaulting Lender arising out of or in relation to such failure to fund. In the event of a direct conflict between the priority provisions of this Section 6.9(e) and any other provision contained in this Agreement or any other Financing Agreement, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 6.9(e) shall control and govern.

Appears in 1 contract

Sources: Loan and Security Agreement (Delta Apparel, Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (J Crew Group Inc)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the~~ Administrative Agent and Lenders, ~~the~~ Administrative Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving~~ Loans made by ~~the~~ Administrative Agent on behalf of Lenders as provided in this ~~Section 3.6~~Section, the amount of each Lender’s Pro Rata Share of ~~such~~ the outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. Boston time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the~~ provided, that, Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The~~ Administrative Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the~~ Administrative Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the~~ Administrative Agent and received by a Lender prior to 12:00 ~~noon~~p.m. Boston time, then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. Boston time on the same Business Day and if received by a Lender after 12:00 ~~noon~~p.m. Boston time, then such Lender shall make the settlement transfer by not later than 3:00 p.m. Boston time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the~~ Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, ~~the~~ Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the~~ Administrative Agent. ~~The~~ Administrative Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by ~~the~~ Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the~~ Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the~~ Administrative Agent may apply such amounts repaid directly to any amounts made available by ~~the~~ Administrative Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the~~ Administrative Agent may, at its option, at any time require each Lender to provide ~~the~~ Administrative Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the~~ Administrative Agent’s disbursement of such ~~Revolving~~ Loan to Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) If ~~the~~ Administrative Agent is not funding a particular ~~Revolving~~ Loan to ~~a Borrower (~~or ~~the Administrative Borrower~~ for the benefit of ~~such Borrower)~~ a Borrower pursuant to ~~subsections (a~~Sections 6.10(a) and (b6.10(b) ~~above~~ on any day, but is requiring each Lender to provide ~~the~~ Administrative Agent with immediately available funds on the date of such ~~Revolving Loan as provided in subsection (c) above~~Loan, ~~the~~ Administrative Agent may assume that each Lender will make available to ~~the~~ Administrative Agent such Lender’s Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day and ~~the~~ Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If ~~the~~ Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to ~~the~~ Administrative Agent by such Lender, ~~the~~ Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the~~ Administrative Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Administrative Agent’s option based on the arithmetic mean determined by Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by Administrative Agent) and if such amounts are not paid within three (3) days of ~~the~~ Administrative Agent’s demand, at the highest ~~interest rate~~ Interest Rate provided for in Section 3.1 hereof applicable to ~~Base~~ Prime Rate Loans. During the period in which such Lender has not paid such corresponding amount to ~~the~~ Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the~~ Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the~~ Administrative Agent for its own account. . (e) Upon any ~~such~~ failure by a Lender to pay Administrative Agent pursuant to the settlement described in Section 6.10(b) above or to pay Administrative ~~Agent~~Agent pursuant to Section 6.10(c) or 6.10(d), ~~the~~ Administrative Agent shall promptly thereafter notify ~~the Administrative~~ Lead Borrower of such failure and Borrowers shall pay such corresponding principal amount to ~~the~~ Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such notice. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.Agent

Appears in 1 contract

Sources: Loan and Security Agreement (Spartan Stores Inc)

Appears in 1 contract

Sources: Loan Agreement (Haynes International Inc)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between the Administrative Agent and Lenders, the Administrative Agent may, at its option, subject to the terms of this Section 3.6, make available, on behalf of Lenders, the full amount Collection of the ~~Revolving Loans requested or charged to any Borrower’s loan account(s) or otherwise to~~ Pool Receivables shall be ~~advanced~~ administered by ~~Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed Revolving Loans (each such advance by the Administrative~~ a Collection Agent, a “Settlement Advance”). (b) With respect to (i) all Swingline Loans and (ii) all Revolving Loans made by the Administrative Agent on behalf of Lenders as provided in this Section 3.6, the amount of each Lender’s Pro Rata Share of such outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. on the Business Day immediately preceding the date of each settlement computation; provided that the Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. The Administrative Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by the Administrative Agent and received by a Lender prior to 12:00 noon, then such Lender shall make the settlement transfer described in this Section 3.6 by no later than 3:00 p.m. on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m. on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to the Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s (other than a Defaulting Lender) Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, the Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the Administrative Agent. The Administrative Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of Article IV of this ~~Section 3.6~~ Agreement. The Collection Agent shall direct each Obligor to direct all payments of Collections into Collection Accounts. Subsequently, the Collection Agent shall forthwith cause all such Collections received in the Collection Accounts to be transferred into the Controlled Account within one Business Day; provided that, if the balance in any such Collection Account is ~~absolute and unconditional and~~ less than $50,000, the Collection Agent shall not be ~~affected by~~ obligated to transfer any ~~circumstance whatsoever~~amounts from such Collection Account as long as the account balance remains less than $50,000 and also as long as the balance is transferred according to a standing order (a “Threshold Basis”). Additionally, ~~including~~with respect to Collection Accounts that have balances less than $50,000 and whose balances are not transferred on a Threshold Basis, ~~without limitation, non-satisfaction of~~ the ~~conditions set forth in Article 5~~Collection Agent will transfer funds manually from such accounts on a weekly basis. ~~Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans~~ Any Amounts transferred pursuant to this Section ~~3.6, one of the events described in Section 11.1(f), (g~~1.04(a) ~~or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to~~ may be ~~refunded~~ in an amount ~~equal~~ that leaves up to ~~its Pro Rata Share of~~ $10,000 remaining in each such Collection Account. The Seller shall provide to the ~~aggregate amount of~~ Collection Agent (if other than United Rentals) on a timely basis all information needed for such ~~Loan.~~ Receivable Interest in the Pool Receivables pursuant to Section 1.04(b)(i), and (ciii) ~~To the extent that~~ with the Administrative Agent ~~has made any~~ for transfer to each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank, Collections held for the Investors or the Banks that relate to such ~~amounts available and the settlement described above shall not yet have occurred, upon repayment of any Revolving Loans by a Borrower or with the collected proceeds on deposit~~ Receivable Interest in the ~~Administrative Agent Payment Account as described in Section 3.5(b), the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent~~ Pool Receivables pursuant to ~~this~~ Section ~~3.6. In lieu~~ 1.04(b)(iii); provided, that, in the event any Bank is a Delaying Bank at the time of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement transfer of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. (d) If the Administrative Agent is not funding a particular Revolving Loan to a Borrower (or the Administrative Borrower for the benefit of such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume that each Lender will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount so advanced Collections by the Administrative Agent to each Purchaser Agent’s Account pursuant to this clause (iii), then such amounts shall be transferred by the Administrative Agent, first to the Purchaser Agent’s Account of each Purchaser Agent whose relatedRelated Banks are each Non-Delaying Banks ratably according to the amount then owed to each Investor or ~~for~~ Bank related to each such Purchaser Agent, until the ~~benefit~~ aggregate outstanding Capital of Receivable Interests in the Pool Receivables held by each Bank plus, in the event such Bank has any ~~Borrower shall~~related Purchasers, ~~for all purposes hereof~~such Bank’s ratable share of the outstanding Capital of Receivable Interests in the Pool Receivables held by such related Purchasers is equal to such Bank’s ratable share (based on the applicable Bank’s Percentage) of the aggregate outstanding Capital of Receivable Interests in the Pool Receivables, be and second to each Purchaser Agent’s Account ratably according to the amount then owed to each Investor or Bank and (y) any Liquidation Day that occurs at such time that there is a ~~Revolving Loan made by~~ Delaying Bank, upon the request of the Purchaser Agents whose relatedRelated Banks are each Non-Delaying Banks, the Collection Agent shall deposit with the Administrative Agent for ~~its own account. Upon any~~ transfer to the Purchaser Agent’s Account of each such ~~failure by a Lender~~ Purchaser Agent ratably according to ~~pay~~ the ~~Administrative~~ amount then owed to each Investor or Bank related to each such Purchaser Agent, Collections held for the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such notice. (e) Nothing in this Section 3.6 or elsewhere in this Agreement Investors or the ~~other Loan Documents shall be deemed~~ Banks that relate to ~~require~~ such Receivable Interest in the ~~Administrative Agent~~ Pool Receivables pursuant to ~~advance funds on behalf~~ Section 1.04(b)(iii) in an amount required for application in full under item “first” contained in the proviso at the end of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section ~~3.9~~1.04(c)(x)(iii).

Appears in 1 contract

Sources: Assignment and Acceptance Agreement (United Rentals North America Inc)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the~~ Administrative Agent and Lenders, ~~the~~ Administrative Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to any Borrower’s 's loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving~~ Loans made by ~~the~~ Administrative Agent on behalf of Lenders as provided in this ~~Section 3.6~~Section, the amount of each Lender’s 's Pro Rata Share of ~~such~~ the outstanding Loans shall be computed ~~weekly,~~ weekly and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. EST on the Business Day immediately preceding the date of each settlement computation; ~~provided that the~~ provided, that, Administrative Agent retains the absolute right at any time or from time to time to make the ~~above~~ above-described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The~~ Administrative Agent shall deliver to each of the Lenders after the end of each week, or ~~at such lesser period or periods~~ more frequently as ~~the~~ Administrative Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by ~~the~~ Administrative Agent and received by a Lender prior to 12:00 ~~noon~~p.m. EST, then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. EST on the same Business Day and if received by a Lender after 12:00 ~~noon~~p.m. EST, then such Lender shall make the settlement transfer by not later than ~~3:00~~ 4:00 p.m. EST on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s 's Pro Rata Share of the outstanding Loans is more than such Lender’s 's Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (~~but~~ hut in no event later than the time set forth in the preceding sentence) transfer to ~~the~~ Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s 's Pro Rata Share of the outstanding Loans for the previous Settlement Period, ~~the~~ Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the~~ Administrative Agent. ~~The~~ Administrative Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance ~~and/or~~ and or be repaid such Loans, interest with respect to Loans shall be allocated by ~~the~~ Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the~~ Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the~~ Administrative Agent may apply such amounts repaid directly to any amounts made available by ~~the~~ Administrative Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the~~ Administrative Agent may, at its option, at any time require each Lender to provide ~~the~~ Administrative Agent 4833-7494-6387.12 45083/0017 03/0202018 with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the~~ Administrative Agent’s 's disbursement of such ~~Revolving~~ Loan to Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender's obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender's obligation to make a Loan hereunder. (d) Upon the making of any Loan by Administrative Agent as provided herein, without further action by any party hereto, each Lender shall be deemed to have irrevocably and unconditionally purchased and received from Administrative Agent, without recourse or warranty, an undivided interest and participation to the extent of such Lender's Pro Rata Share in such Loan. To the extent that there is no settlement in accordance with the terms hereof, Administrative Agent may at any time require the Lenders to fund their participations. From and after the date, if any, on which any Lender has funded its participation in any such Loan, Administrative Agent shall promptly distribute to such Lender, such Lender's Pro Rata Share of all payments of principal and interest received by Administrative Agent in respect of such Loan. (e) If ~~the~~ Administrative Agent is not funding a particular ~~Revolving~~ Loan to a Borrower (or ~~the Administrative~~ Borrower Agent for the benefit of such Borrower) pursuant to ~~subsections (a) and (b) above~~ this Section on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the~~ Administrative Agent may assume that each Lender will make available to ~~the~~ Administrative Agent such Lender’s 's Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day and ~~the~~ Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If ~~the~~ Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to ~~the~~ Administrative Agent by such Lender, ~~the~~ Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the~~ Administrative Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Administrative Agent's option based on the arithmetic mean determined by Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. EST on that day by each of the three (3) leading brokers of Federal funds transactions in New York City selected by Administrative Agent) and if such amounts are not paid within three (3) days of ~~the~~ Administrative Agent’s 's demand, at the highest ~~interest rate~~ Interest Rate provided for in Section ~~3.1~~ 3.3 hereof applicable to ~~Base~~ Prime Rate Loans. During the period in which such Lender has not paid such corresponding amount to ~~the~~ Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount so advanced by ~~the~~ Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the~~ Administrative Agent for its own account. Upon any such failure by a Lender to pay ~~the~~ Administrative Agent, ~~the~~ Administrative Agent shall promptly thereafter notify ~~the Administrative~~ Borrower Agent of such failure and Borrowers shall pay such corresponding amount to ~~the~~ Administrative Agent for its own account within five (5) Business Days of ~~the Administrative Borrower’s~~ Borrower Agent's receipt of such notice. Any Lender that has failed to fund any portion of the Loans, participations in Letters of Credit required to be funded by it hereunder within one (1) Business Day of the date required to be funded by it hereunder, or has otherwise failed to pay over to Administrative Agent or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, shall be a "Defaulting Lender". (ef) Administrative Agent shall not be Obligated to transfer to a Defaulting Lender any payments received by Administrative Agent for the Defaulting Lender's benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). For purposes of voting or consenting to matters with respect to this Agreement and the other Loan Documents and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a "Lender" 4833-7494-6387.12 45083/0017 03/0202018 and such Lender's Commitment shall be deemed to be zero (0). All amounts otherwise payable in respect of the Pro Rata Share of principal to a Defaulting Lender shall instead be paid to the other Lenders based on their Pro Rata Shares calculated after giving effect to the reduction of the Defaulting Lender's Commitment to zero (0) as provided herein or at Administrative Agent's option may instead be paid to and retained by Administrative Agent. To the extent that Administrative Agent elects to receive and retain such amounts, Administrative Agent may hold them and, in its reasonable discretion, relend such amounts to a Borrower. To the extent that Administrative Agent exercises its option to relend such amounts, such amounts shall be treated as Revolving Loans for the account of Administrative Agent in addition to the Revolving Loans that are made by the Lenders other than Defaulting Leaders based on their Pro Rata Shares as calculated after giving effect to the reduction of the Defaulting Lender's Commitment to zero (0) as provided herein but shall be repaid in the same order of priority as Special Agent Advances for purposes of Section 6.3 hereof, except as Administrative Agent may otherwise elect. The rights of a Defaulting Lender shall be limited as provided herein until such time as the Defaulting Lender has made all payments to Administrative Agent that were the basis for it to become a Defaulting Lender. Upon the cure by Defaulting Lender of the event that is the basis for it to be a Defaulting Lender by making such payment or payments, such Lender shall cease to be a Defaulting Lender and shall be entitled to payment of interest to the extent previously received and retained by Administrative Agent from or for the account of Borrowers on the funds constituting Loans made by such Lender prior to the date of it being a Defaulting Lender (and not previously paid to such Lender) and shall otherwise, after such cure, make Loans and settle in respect of the Loans and other Obligations in accordance with the terms hereof. The existence of a Defaulting Lender and the operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by any Borrower or Obligor of their duties and obligations hereunder. (g) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other Loan Documents shall be deemed to require ~~the~~ Administrative Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (BBX Capital Corp)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, including the Swing Line Lender, the full amount of the Revolving Loans or Swing Line Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving~~ Loans made by ~~the Administrative~~ Agent on behalf of ~~Lenders as provided in this Section 3.6~~Lenders, the amount of each Lender’s Pro Rata Share of ~~such~~ the outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of 5:00 p.m. New York City time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ With respect to Swing Line Loans made by Swing Line Lender (or Agent on behalf of Swing Line Lender), Swing Line Lender (or Agent on behalf of Swing Line Lender) may settle on the Swing Line Loans from time to time as it determines, but not less frequently than once each week. Agent (or Swing Line Lender as to Swing Line Loans) shall deliver to each of the Lenders after the end of each week, or at such ~~lesser~~ period or periods as ~~the Administrative~~ Agent (or Swing Line Lender as to Swing Line Loans) shall determine, a summary statement of the amount of outstanding Loans (whether Revolving Loans, Swing Line Loans or both, as applicable) for such period (such week or ~~lesser~~ other period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by Agent (or Swing Line Lender in the ~~Administrative Agent~~ case of Swing Line Loans) and received by a Lender prior to 12:00 ~~noon~~p.m., then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. on the same Business Day and if received by a Lender after 12:00 ~~noon~~p.m., then such Lender shall make the settlement transfer by not later than 3:00 p.m. on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender) Pro Rata Share~~ pro rata share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. Each Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to Swing Line Lender (or upon its request to Agent) by wire transfer in immediately available funds the amount of such Lender’s Pro Rata Share of the outstanding Swing Line Loans as set forth in the summary statement provided to such Lender as provided above. Amounts transferred to Swing Line Lender (or Agent as the case may be) in respect to a settlement of Swing Line Loans shall be applied to the payment of the Swing Line loans and shall constitute Loans of such Lenders. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by Agent and may occur at any time a Default or Event of Default exists or has occurred and whether or not the ~~Administrative Agent~~conditions set forth in Section 4.2 are satisfied (except if there is an Event of Default under Section 12.1(g), in which case the funds shall be in respect of each Lender’s participation). ~~The Administrative~~ Agent and each Lender agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the ~~Administrative~~ Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the ~~Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ Agent pursuant to this ~~Section 3.6~~Section. In lieu of ~~weekly or more frequent~~ settlements, ~~the Administrative~~ Agent may, at its option, at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s disbursement of such ~~Revolving~~ Loan to a Borrower. In such event, Agent shall notify each Lender promptly after Agent’s receipt of the request for the Loans from a Borrower (or Administrative Borrower on behalf of such Borrower) or any deemed request hereunder and each Lender shall provide its Pro Rata Share of such requested Loan to the account specified by Agent in immediately available funds not later than 2:00 p.m. on the requested funding date, so that all ~~Revolving~~ such Loans ~~under this Agreement~~ shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) If Upon the ~~Administrative~~ making of any Loan by Agent ~~is not funding a particular Revolving Loan~~ as provided herein, without further action by any party hereto, each Lender shall be deemed to ~~a Borrower (~~have irrevocably and unconditionally purchased and received from Agent, without recourse or warranty, an undivided interest and participation to the ~~Administrative Borrower for the benefit~~ extent of such ~~Borrower~~Lender’s Pro Rata Share in such Loan. To the extent that there is no settlement in accordance with the terms hereof, Agent may at any time require the Lenders to fund their participations. From and after the date, if any, on which any Lender has funded its participation in any such Loan, Agent shall promptly distribute to such Lender, such Lender’s Pro Rata Share of all payments of principal and interest received by Agent in respect of such Loan. (e) As to any Loan funded by Agent on behalf of a Lender (including Swing Line Lender) whether pursuant to ~~subsections (a~~Sections 6.13(a), 6.13(b) ~~and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c~~or 6.13(c) above, ~~the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day ~~and~~ in the ~~Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount~~ case of Loans funded pursuant to ~~be made available to~~ Section 6.13(c) above or ~~for~~ otherwise on the ~~benefit of such Borrower on such day~~applicable settlement date. If ~~the Administrative~~ Agent makes ~~such corresponding amount~~ amounts available to a Borrower and such corresponding ~~amount is~~ amounts are not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at Agent’s option based on the arithmetic mean determined by Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. on that day by each of the three leading brokers of Federal funds transactions in New York selected by Agent) and if such amounts are not paid within three (3) days of ~~the Administrative~~ Agent’s demand, at the highest ~~interest rate~~ Interest Rate provided for in Section 3.1 hereof applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. . (f) Upon any ~~such~~ failure by a Lender to pay Agent (or Swing Line Lender) pursuant to the ~~Administrative Agent~~settlement described in Section 6.13(b) above or to pay Agent pursuant to Section 6.13(c), ~~the Administrative~~ 6.13(d) or Section 6.13(e), Agent shall promptly thereafter notify ~~the~~ Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to ~~the Administrative~~ Agent for its own account within five (5) Business Days of ~~the~~ Administrative Borrower’s receipt of such notice. . The term “Defaulting Lender” shall mean (ei) ~~Nothing~~ any Lender that has failed to fund any portion of the Revolving Loans, participations in ~~this Section 3.6~~ Letter of Credit Obligations or ~~elsewhere~~ participations in Swing Line Loans required to be funded by it hereunder within one (1) Business Day of the date required to be funded by it hereunder, or has otherwise failed to pay over to Agent or any other Lender any other amount required to be paid by it hereunder within one (1) Business Day of the date when due, (ii) any Lender that has notified Agent, any Lender, Issuing Bank, or any Borrower or Guarantor in writing that it will not or does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it will not or does not intend to comply with its funding obligations under this Agreement or under other ~~Loan Documents shall be deemed~~ agreements in which it has agreed to ~~require~~ make loans or provide other financial accommodations, (iii) any Lender that has failed, within five (5) Business Days after request by Agent or the Administrative Borrower to confirm that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit and Swing Line Loans; provided that any such Lender shall cease to be a Defaulting Lender under this clause (iii) upon receipt of such confirmation by Agent ~~to advance funds on behalf~~ and the Administrative Borrower, or (iv) any Lender that becomes or is insolvent or has a parent company that has become or is insolvent or becomes the subject of a bankruptcy or insolvency proceeding, or has a receiver, conservator, trustee or custodian appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment and has not obtained all required orders, approvals or consents of any ~~Lender (including, without limitation, a Defaulting Lender)~~ court or other Governmental Authority to ~~relieve any Lender from its obligation~~ continue to fulfill its ~~Commitment hereunder or~~ obligations hereunder, in form and substance satisfactory to ~~prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender,~~ Agent and the Administrative ~~Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9~~Borrower.

Appears in 1 contract

Sources: Loan and Security Agreement (Nci Building Systems Inc)

Settlement Procedures. (a) In order to administer the ~~Credit Facility~~ credit facility provided hereunder in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may~~, at its option~~, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to ~~any Borrower’s~~ Borrowers' loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without any requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving~~ Loans made by ~~the Administrative~~ Agent on behalf of Lenders as provided in this ~~Section 3.6~~Section, the amount of each Lender’s 's Pro Rata Share of ~~such~~ the outstanding Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Loans as of ~~5:00 p.m. on the Business Day immediately preceding~~ the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. ~~The Administrative~~ Agent shall deliver to each of the Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Loans for such period (such week or lesser period or periods being hereinafter referred to as a “"Settlement Period”"). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Lender prior to 12:00 ~~noon~~p.m. Los Angeles time, then such Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. Los Angeles time on ~~the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m. on the next Business Day following~~ the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s 's Pro Rata Share of the outstanding Loans is more than such Lender’s 's Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender~~’s (other than a Defaulting Lender)~~ 's Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s 's Pro Rata Share of the outstanding Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Lenders agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the ~~Administrative~~ Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the ~~Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by ~~Borrowers~~ any Borrower or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative~~ any Borrower, Agent ~~Payment Account as described in Section 3.5(b), the Administrative Agent may~~ shall first apply such amounts repaid directly to any amounts made available ~~by the Administrative~~ any Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent ~~may, at its option, at~~ may any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing ~~its~~ Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s 's disbursement of such ~~Revolving~~ Loan to any Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender's obligation to make a Loan requested hereunder nor shall the Loan Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender's obligation to make a Loan hereunder. (d) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan to a Borrower ~~(or the Administrative Borrower for the benefit of such Borrower)~~ pursuant to ~~subsections (a) and (b) above~~ this Section on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s 's Pro Rata Share of the ~~Revolving~~ Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to ~~or for the benefit of such Borrower~~ Borrowers on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to ~~a Borrower~~ Borrowers and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the ~~Federal Funds~~ Prime Rate ~~for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest~~ based interest rate ~~provided~~ for Revolving Loans set forth in Section 3.1 ~~applicable to Base Rate Loans~~hereof. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to ~~or for the benefit of~~ any Borrower shall, for ~~all~~ purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the Administrative~~ Borrower Agent of such failure and Borrowers shall immediately pay such corresponding amount to ~~the Administrative~~ Agent for its own account. A Lender who fails to pay Agent its Pro Rata Share of any Loans made available by the Agent on such Lender's behalf, or any Lender who fails to pay any other amount owing to Agent, is a "Defaulting Lender". Agent shall not be obligated to transfer to a Defaulting Lender any payments made by or on behalf of any Borrower or any Obligor to Agent for the Defaulting Lender's benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, relend to any Borrower the amount of all such payments received or retained by it for the account ~~within five (5) Business Days of the Administrative Borrower’s receipt~~ of such ~~notice~~Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to a Lender and such Defaulting Lender's Loan Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Loan Commitment of any Lender, or relieve or excuse the performance by any Borrower or any Obligor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Loan Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Loan Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (MTS Inc)

Settlement Procedures. (a) In order to administer the Revolving Credit Facility in an efficient manner and to minimize the transfer of funds between the Administrative Agent and the Revolving Loan Lenders, the Administrative Agent may, at its option, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of the Revolving Loan Lenders, the full amount of the Revolving Loans requested or charged to ~~any Borrower’s loan account(s~~the Borrowers’ Loan Account(s) or otherwise to be advanced by the Revolving Loan Lenders pursuant to the terms hereof, without requirement of prior notice to the Revolving Loan Lenders of the proposed Revolving ~~Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i)~~ all ~~Swingline Loans and (ii) all Revolving Loans~~ advances made by the Administrative Agent on behalf of the Revolving Loan Lenders as provided in this ~~Section 3.6~~Section, the amount of each Revolving Loan Lender’s Pro Rata Share of ~~such~~ the outstanding ~~Loans~~ advances shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding ~~Loans~~ advances as of 5:00 p.m. New York time on the Business Day immediately preceding the date of each settlement computation; ~~provided that~~ provided, that, the Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. The Administrative Agent shall deliver to each of the Revolving Loan Lenders after the end of each week, or at such lesser period or periods as the Administrative Agent shall determine, a summary statement of the amount of outstanding ~~Loans~~ advances under the Revolving Credit Facility for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by the Administrative Agent and received by a Revolving Loan Lender prior to 12:00 ~~noon~~noon New York time, then such Revolving Loan Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than 3:00 p.m. New York time on the same Business Day and if received by a Revolving Loan Lender after 12:00 ~~noon~~noon New York time, then such Revolving Loan Lender shall make the settlement transfer by not later than 3:00 p.m. New York time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Revolving Loan Lender’s Pro Rata Share of the outstanding ~~Loans~~ advances under the Revolving Credit Facility is more than such Revolving Loan Lender’s Pro Rata Share of the outstanding ~~Loans~~ advances under the Revolving Credit Facility as of the end of the previous Settlement Period, then such Revolving Loan Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to the Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Revolving Loan Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding ~~Loans~~ advances under the Revolving Credit Facility in any Settlement Period is less than the amount of such Revolving Loan Lender’s Pro Rata Share of the outstanding ~~Loans~~ advances under the Revolving Credit Facility for the previous Settlement Period, the Administrative Agent shall forthwith transfer to such Revolving Loan Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Revolving Loan Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by the Administrative Agent. The Administrative Agent and each Revolving Loan Lender ~~agrees~~ agree to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro Rata Share of the outstanding ~~Loans~~ advances under the Revolving Credit Facility and Letters of Credit. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the ~~Loans~~ advances under the Revolving Credit Facility to the extent such ~~Loans~~ advances under the Revolving Credit Facility have been funded by such Revolving Loan Lender. Because the Administrative Agent on behalf of the Revolving Loan Lenders may be advancing and/or may be repaid ~~Loans~~ advances under the Revolving Credit Facility prior to the time when such Revolving Loan Lenders will actually advance and/or be repaid such ~~Loans~~advances, interest with respect to ~~Loans~~ advances under the Revolving Credit Facility shall be allocated by the Administrative Agent in accordance with the amount of ~~Loans~~ advances actually advanced by and repaid to each Revolving Loan Lender and the Administrative Agent and shall accrue from and including the date such ~~Loans~~ advances are so advanced to but excluding the date such ~~Loans~~ advances are either repaid by the Borrowers or actually settled with the applicable Revolving Loan Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that the Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any advances under the Revolving ~~Loans~~ Credit Facility by a ~~Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~Borrower, the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Revolving Loan Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving Loan~~advance, prior to the Administrative Agent’s disbursement of such ~~Revolving Loan~~ advance to such Borrower. In such event, all advances under the Revolving ~~Loans under this Agreement~~ Credit Facility shall be made by the Revolving Loan Lenders simultaneously and proportionately to their Pro Rata Shares. No Revolving Loan Lender shall be responsible for any default by any other Revolving Loan Lender in the other Revolving Loan Lender’s obligation to make any advance requested hereunder nor shall the Revolving Credit Commitment of any Revolving Loan Lender be increased or decreased as a result of the default by any other Revolving Loan Lender in the other Revolving Loan Lender’s obligation to make any advance hereunder. (d) If the Administrative Agent is not funding a particular ~~Revolving Loan~~ advance to ~~a Borrower~~ the Borrowers (or the Administrative Borrower for the benefit of such ~~Borrower~~Borrowers) pursuant to ~~subsections (a) and (b) above~~ this Section on any day~~, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above~~, the Administrative Agent may assume that each Revolving Loan Lender will make available to the Administrative Agent such Revolving Loan Lender’s Pro Rata Share of the ~~Revolving Loan~~ advance requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Revolving Loan Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Revolving Loan Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to the Administrative Agent at the Federal Funds Rate for each day during such period (as published by the Federal Reserve Bank of New York or at the Administrative Agent’s option based on the arithmetic mean determined by the Administrative Agent of the rates for the last transaction in overnight Federal funds arranged prior to 9:00 a.m. (New York time) on that day by each of the three leading brokers of Federal funds transactions in New York City selected by the Administrative Agent) and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the ~~highest~~ interest rate ~~provided for in Section 3.1~~ then applicable to ~~Base Rate~~ Revolving Loans. During the period in which such Revolving Loan Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by the Administrative Agent for its own account. Upon any such failure by a Revolving Loan Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and the Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such notice. A Revolving Loan Lender who fails to pay the Administrative Agent its Pro Rata Share of any Loans made available by the Administrative Agent on such Revolving Loan Lender’s behalf, or any Revolving Loan Lender who fails to pay any other amount owing by it to the Administrative Agent, is a “Defaulting Lender”. The Administrative Agent shall not be obligated to transfer to a Defaulting Lender any payments received by the Administrative Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder (including any principal, interest or fees). Amounts payable to a Defaulting Lender shall instead be paid to or retained by the Administrative Agent. The Administrative Agent may hold and, in its discretion, relend to a Borrower the amount of all such payments received or retained by it for the account of such Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Loan Documents, and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a “Revolving Loan Lender” and such Revolving Loan Lender’s Revolving Credit Commitment shall be deemed to be zero. This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Revolving Loan Lender, or relieve or excuse the performance by any Borrower or Obligor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other Loan ~~Documents~~ Documents, shall be deemed to require the Administrative Agent to advance funds on behalf of any Revolving Loan Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Revolving Loan Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that ~~any Borrower~~ the Borrowers may have against any Revolving Loan Lender as a result of any default by any Revolving Loan Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Financing Agreement (Omega Protein Corp)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between ~~the~~ Administrative and Collateral Agent and Lenders, ~~the~~ Administrative and Collateral Agent may~~, at its option~~, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to any Borrower’s loan ~~account(s)~~ account or otherwise to be advanced by Lenders pursuant to the terms hereof, without any requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving Loans made by ~~the~~ Administrative and Collateral Agent on behalf of Revolving Loan Lenders as provided in this ~~Section 3.6~~Section, the amount of each Revolving Loan Lender’s Pro Rata Share of ~~such~~ the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Loans as of 5:00 p.m. New York time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the~~ provided, that, Administrative and Collateral Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The~~ Administrative and Collateral Agent shall deliver to each of the Revolving Loan Lenders after the end of each week, or at such lesser period or periods as ~~the~~ Administrative and Collateral Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the~~ Administrative and Collateral Agent and received by a Revolving Loan Lender prior to ~~12:00 noon~~2:00 p.m. New York time, then such Revolving Loan Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. ~~on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m.~~ New York time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Revolving Loans is more than such Lender’s Pro Rata Share of the outstanding Revolving Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the~~ Administrative and Collateral Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Revolving Loans for the previous Settlement Period, ~~the~~ Administrative and Collateral Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Revolving Loan Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the~~ Administrative and Collateral Agent. ~~The~~ Each of Administrative and Collateral Agent and ~~each Lender~~ Revolving Loan Lenders agrees to ▇▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro ~~Rata~~ Rate Share of the outstanding Revolving Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative and Collateral Agent on behalf of Revolving Loan Lenders may be advancing and/or may be repaid Revolving Loans prior to the time when Lenders will actually advance and/or be repaid such Revolving Loans, interest with respect to Revolving Loans shall be allocated by ~~the~~ Administrative and Collateral Agent in accordance with the amount of Revolving Loans actually advanced by and repaid to each Revolving Loan Lender and the Administrative and Collateral Agent and shall accrue from and including the date such Revolving Loans are so advanced to but excluding the date such Revolving Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanSection. (c) To the extent that ~~the~~ Administrative and Collateral Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the~~ Borrowers, Administrative ~~Agent Payment Account as described in Section 3.5(b), the Administrative~~ and Collateral Agent may apply such amounts repaid directly to any amounts made available by ~~the~~ any Administrative and Collateral Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the~~ Administrative and Collateral Agent ~~may, at its option,~~ may at any time require each Lender to provide ~~the~~ Administrative and Collateral Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the~~ Administrative and Collateral Agent’s disbursement of such ~~Revolving~~ Loan to ~~Borrower~~Borrowers. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Revolving Loan Commitment of any Revolving Loan Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) If ~~the~~ Administrative and Collateral Agent is not funding a particular ~~Revolving~~ Loan to ~~a Borrower (or the Administrative Borrower for the benefit of such Borrower)~~ Borrowers pursuant to ~~subsections (a) and (b) above~~ this Section on any day, ~~but is requiring each Lender to provide the~~ Administrative ~~Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ and Collateral Agent may assume that each Lender will make available to ~~the~~ Administrative and Collateral Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and ~~the~~ Administrative and Collateral Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to ~~or for the benefit of such Borrower~~ Borrowers on such day. If ~~the~~ Administrative and Collateral Agent makes such corresponding amount available to ~~a Borrower~~ Borrowers and such corresponding amount is not in fact made available to ~~the~~ Administrative and Collateral Agent by such Lender, ~~the~~ Administrative and Collateral Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the~~ Administrative and Collateral Agent at the ~~Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest~~ interest rate provided for in Section 3.1 ~~applicable to Base Rate Loans~~hereof. During the period in which such Lender has not paid such corresponding amount to ~~the~~ Administrative and Collateral Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the~~ Administrative and Collateral Agent to ~~or for the benefit of any Borrower~~ Borrowers shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the~~ Administrative and Collateral Agent for its own account. Upon any such failure by a Lender to pay ~~the~~ Administrative and Collateral Agent, ~~the~~ Administrative and Collateral Agent shall promptly thereafter notify ~~the~~ Administrative Borrower of such failure and Borrowers shall immediately pay such corresponding amount to ~~the~~ Administrative and Collateral Agent for its own ~~account within five (5) Business Days~~ account. A Lender who fails to pay Administrative and Collateral Agent its Pro Rata Share of any Loans made available by the Administrative ~~Borrower~~and Collateral Agent on such Lender’s ~~receipt~~ behalf, or any Lender who fails to pay any other amount owing to Administrative and Collateral Agent, is a “Defaulting Lender”. Administrative and Collateral Agent shall not be obligated to transfer to a Defaulting Lender any payments made by or on behalf of any Borrower or any Guarantor to Administrative and Collateral Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Administrative and Collateral Agent. Administrative and Collateral Agent may hold and, in its discretion, re-lend to Borrowers the amount of all such payments received or retained by it for the account of such ~~notice~~Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a Lender and such Defaulting Lender’s Revolving Loan Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Revolving Loan Commitment of any Lender, or relieve or excuse the performance by any Borrower or any Guarantor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the~~ Administrative and Collateral Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Revolving Loan Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Revolving Loan Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (BlueLinx Holdings Inc.)

Appears in 1 contract

Sources: Loan Agreement (Listerhill Total Maintenance Center LLC)

Appears in 1 contract

Sources: Loan and Security Agreement (Charming Shoppes Inc)

Appears in 1 contract

Sources: Receivables Purchase and Sale Agreement (Maxtor Corp)

Settlement Procedures. (a) In order to administer the ~~Credit Facility~~ credit facility provided hereunder in an efficient manner and to minimize the transfer of funds between ~~the Administrative~~ Agent and Lenders, ~~the Administrative~~ Agent may~~, at its option~~, subject to the terms of this ~~Section 3.6~~Section, make available, on behalf of Lenders, the full amount of the ~~Revolving~~ Loans requested or charged to ~~any Borrower’s~~ Borrowers’ loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without any requirement of prior notice to Lenders of the proposed ~~Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”)~~Loans. (b) With respect to ~~(i) all Swingline Loans and (ii)~~ all Revolving Loans made by ~~the Administrative~~ Agent on behalf of Revolving Loan Lenders as provided in this ~~Section 3.6~~Section, the amount of each Revolving Loan Lender’s Pro Rata Share of ~~such~~ the outstanding Revolving Loans shall be computed weekly, and shall be adjusted upward or downward on the basis of the amount of the outstanding Revolving Loans as of 5:00 p.m. Los Angeles time on the Business Day immediately preceding the date of each settlement computation; ~~provided that the Administrative~~ provided, that, Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly, but in no event more than twice in any week. ~~The Administrative~~ Agent shall deliver to each of the Revolving Loan Lenders after the end of each week, or at such lesser period or periods as ~~the Administrative~~ Agent shall determine, a summary statement of the amount of outstanding Revolving Loans for such period (such week or lesser period or periods being hereinafter referred to as a “Settlement Period”). If the summary statement is sent by ~~the Administrative~~ Agent and received by a Revolving Loan Lender prior to ~~12:00 noon~~2:00 p.m. Los Angeles time, then such Revolving Loan Lender shall make the settlement transfer described in this Section ~~3.6~~ by no later than ~~3:00~~ 2:00 p.m. ~~on the same Business Day and if received by a Lender after 12:00 noon, then such Lender shall make the settlement transfer by not later than 3:00 p.m.~~ Los Angeles time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Revolving Loans is more than such Lender’s Pro Rata Share of the outstanding Revolving Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to ~~the Administrative~~ Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s ~~(other than a Defaulting Lender)~~ Pro Rata Share of the outstanding Revolving Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Revolving Loans for the previous Settlement Period, ~~the Administrative~~ Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decrease. The obligation of each of the Revolving Loan Lenders to transfer such funds and effect such settlement shall be irrevocable and unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative~~ Each of Agent and ~~each Lender~~ Revolving Loan Lenders agrees to ▇m▇▇▇ its books and records at the end of each Settlement Period to show at all times the dollar amount of its Pro ~~Rata~~ Rate Share of the outstanding Revolving Loans and ~~Letters~~ Letter of ~~Credit~~Credit Accommodations. Each Revolving Loan Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the ~~Administrative~~ Agent on behalf of Revolving Loan Lenders may be advancing and/or may be repaid Revolving Loans prior to the time when Lenders will actually advance and/or be repaid such Revolving Loans, interest with respect to Revolving Loans shall be allocated by ~~the Administrative~~ Agent in accordance with the amount of Revolving Loans actually advanced by and repaid to each Revolving Loan Lender and the ~~Administrative~~ Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by ~~Borrowers~~ any Borrower or actually settled with the applicable Lender as described in this ~~Section 3.6~~Section. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5*** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender will, on the date the applicable Loan would have been made, purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of such LoanCONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. (c) To the extent that ~~the Administrative~~ Agent has made any such amounts available and the settlement described above shall not yet have occurred, upon repayment of any ~~Revolving~~ Loans by ~~a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b)~~any Borrower, ~~the Administrative~~ Agent may apply such amounts repaid directly to any amounts made available by ~~the Administrative~~ any Agent pursuant to this ~~Section 3.6~~Section. In lieu of weekly or more frequent settlements, ~~the Administrative~~ Agent ~~may, at its option,~~ may at any time require each Lender to provide ~~the Administrative~~ Agent with immediately available funds representing its Pro Rata Share of each ~~Revolving~~ Loan, prior to ~~the Administrative~~ Agent’s disbursement of such ~~Revolving~~ Loan to any Borrower. In such event, all ~~Revolving~~ Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. No Lender shall be responsible for any default by any other Lender in the other Lender’s obligation to make a Loan requested hereunder nor shall the Commitment of any Lender be increased or decreased as a result of the default by any other Lender in the other Lender’s obligation to make a Loan hereunder. (d) If ~~the Administrative~~ Agent is not funding a particular ~~Revolving~~ Loan to ~~a Borrower (or the Administrative Borrower for the benefit of such Borrower)~~ Borrowers pursuant to ~~subsections (a) and (b) above~~ this Section on any day, ~~but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative~~ Agent may assume that each Lender will make available to ~~the Administrative~~ Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and ~~the Administrative~~ Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to ~~or for the benefit of such Borrower~~ Borrowers on such day. If ~~the Administrative~~ Agent makes such corresponding amount available to ~~a Borrower~~ Borrowers and such corresponding amount is not in fact made available to ~~the Administrative~~ Agent by such Lender, ~~the Administrative~~ Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest thereon for each day from the date such payment was due until the date such amount is paid to ~~the Administrative~~ Agent at the ~~Federal Funds Rate for each day during such period and if such amounts are not paid within three (3) days of the Administrative Agent’s demand, at the highest~~ interest rate provided for in Section 3.1 ~~applicable to Base Rate Loans~~hereof. During the period in which such Lender has not paid such corresponding amount to ~~the Administrative~~ Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other ~~Loan Documents~~Financing Agreements, the amount so advanced by ~~the Administrative~~ Agent to ~~or for the benefit of~~ any Borrower shall, for all purposes hereof, be a ~~Revolving~~ Loan made by ~~the Administrative~~ Agent for its own account. Upon any such failure by a Lender to pay ~~the Administrative~~ Agent, ~~the Administrative~~ Agent shall promptly thereafter notify ~~the Administrative Borrower~~ Borrowers of such failure and Borrowers shall immediately pay such corresponding amount to ~~the Administrative~~ Agent for its own account. A Lender who fails to pay Agent its Pro Rata Share of any Loans made available by the Agent on such Lender’s behalf, or any Lender who fails to pay any other amount owing to Agent, is a “Defaulting Lender”. Agent shall not be obligated to transfer to a Defaulting Lender any payments made by or on behalf of any Borrower or any Obligor to Agent for the Defaulting Lender’s benefit, nor shall a Defaulting Lender be entitled to the sharing of any payments hereunder. Amounts payable to a Defaulting Lender shall instead be paid to or retained by Agent. Agent may hold and, in its discretion, re-lend to any Borrower the amount of all such payments received or retained by it for the account ~~within five (5) Business Days of the Administrative Borrower’s receipt~~ of such ~~notice~~Defaulting Lender. For purposes of voting or consenting to matters with respect to this Agreement and the other Financing Agreements and determining Pro Rata Shares, such Defaulting Lender shall be deemed not to be a Lender and such Defaulting Lender’s Commitment shall be deemed to be zero (0). This Section shall remain effective with respect to a Defaulting Lender until such default is cured. The operation of this Section shall not be construed to increase or otherwise affect the Commitment of any Lender, or relieve or excuse the performance by any Borrower or any Obligor of their duties and obligations hereunder. (e) Nothing in this Section ~~3.6~~ or elsewhere in this Agreement or the other ~~Loan Documents~~ Financing Agreements shall be deemed to require ~~the Administrative~~ Agent to advance funds on behalf of any Lender ~~(including, without limitation, a Defaulting Lender)~~ or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9*** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.

Appears in 1 contract

Sources: Loan and Security Agreement (Pc Mall Inc)

Appears in 1 contract

Sources: Loan and Security Agreement (Fedders Corp /De)

Settlement Procedures. (a) In order to administer the Credit Facility in an efficient manner and to minimize the transfer of funds between the Administrative Agent and Lenders, the Administrative Agent may, at its option, subject to the terms of this Section 3.6, make available, on behalf of Lenders, the full amount of the Revolving Loans requested or charged to any Borrower’s loan account(s) or otherwise to be advanced by Lenders pursuant to the terms hereof, without requirement of prior notice to Lenders of the proposed Revolving Loans (each such advance by the Administrative Agent, a “Settlement Advance”). (b) With respect to (i) all Swingline Loans and (ii) all Revolving Loans made by the Administrative Agent on behalf of Lenders as provided in this Section 3.6, the The amount of each Lender’s ~~Pro Rata Share~~ Revolving Line Commitment Percentage of ~~such~~ outstanding ~~Loans~~ Advances shall be computed ~~weekly,~~ every third Business Day (or more frequently in Agent’s discretion) and shall be adjusted upward or downward based on all Advances and repayments of Advances received by Agent as of 3:00 p.m. Eastern time on the ~~basis~~ first Business Day (such date, the “Settlement Date”) following the end of the amount of the outstanding Loans as of 5:00 p.m. on the Business Day immediately preceding the date of each settlement computation; provided that the Administrative Agent retains the absolute right at any time or from time to time to make the above described adjustments at intervals more frequent than weekly. The Administrative period specified by Agent. (b) Agent shall deliver to each ~~of the Lenders~~ Lender promptly after ~~the end of each week, or at such lesser period or periods as the Administrative Agent shall determine,~~ a Settlement Date a summary statement of the amount of outstanding ~~Loans~~ Advances for the period and the amount of repayments received for the period. As reflected on the summary statement, (i) Agent shall transfer to each Lender its Revolving Line Commitment Percentage of repayments, and (ii) each Lender shall transfer to Agent (as provided below) or Agent shall transfer to each Lender, such ~~period (~~amounts as are necessary to insure that, after giving effect to all such ~~week or lesser period or periods being hereinafter referred~~ transfers, the amount of Advances made by each Lender shall be equal to such Lender’s Revolving Line Commitment Percentage of all Advances outstanding as ~~a “~~of such Settlement ~~Period”)~~Date. If the summary statement requires transfers to be made to Agent by Lenders and is ~~sent by the Administrative Agent and~~ received ~~by a Lender~~ prior to ~~12:00 noon~~11:00 a.m. Eastern time on a Business Day, ~~then~~ such ~~Lender~~ transfers shall ~~make the settlement transfer described~~ be made in ~~this Section 3.6 by~~ immediately available funds no later than ~~3:00~~ 2:00 p.m. ~~on the same Business Day and~~ Eastern time that day; and, if received ~~by a Lender~~ after ~~12:00 noon~~11:00 a.m. Eastern time, then ~~such Lender shall make the settlement transfer by not~~ no later than ~~3:00~~ 2:00 p.m. Eastern time on the next Business Day following the date of receipt. If, as of the end of any Settlement Period, the amount of a Lender’s Pro Rata Share of the outstanding Loans is more than such Lender’s Pro Rata Share of the outstanding Loans as of the end of the previous Settlement Period, then such Lender shall forthwith (but in no event later than the time set forth in the preceding sentence) transfer to the Administrative Agent by wire transfer in immediately available funds the amount of the increase. Alternatively, if the amount of a Lender’s (other than a Defaulting Lender) Pro Rata Share of the outstanding Loans in any Settlement Period is less than the amount of such Lender’s Pro Rata Share of the outstanding Loans for the previous Settlement Period, the Administrative Agent shall forthwith transfer to such Lender by wire transfer in immediately available funds the amount of the decreaseDay. The obligation of each ~~of the Lenders~~ Lender to transfer such funds ~~and effect such settlement shall be irrevocable and~~ is irrevocable, unconditional and without recourse to or warranty by ~~the Administrative~~ Agent. ~~The Administrative Agent~~ If and ~~each~~ to the extent any Lender shall not have so made its transfer to Agent, such Lender agrees to ~~▇▇▇▇ its books and records at the end of each Settlement Period~~ pay to show at all times the dollar amount of its Pro Rata Share of the outstanding Loans and Letters of Credit. Each Lender shall only be entitled to receive interest on its Pro Rata Share of the Loans to the extent such Loans have been funded by such Lender. Because the Administrative Agent on behalf of Lenders may be advancing and/or may be repaid Loans prior to the time when Lenders will actually advance and/or be repaid such Loans, interest with respect to Loans shall be allocated by the Administrative Agent in accordance with the amount of Loans actually advanced by and repaid to each Lender and the Administrative Agent and shall accrue from and including the date such Loans are so advanced to but excluding the date such Loans are either repaid by Borrowers or actually settled with the applicable Lender as described in this Section 3.6. Each Lender acknowledges and agrees that its obligation to refund Loans in accordance with the terms of this Section 3.6 is absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions set forth in Article 5. Further, each Lender agrees and acknowledges that if prior to the refunding of any outstanding Loans pursuant to this Section 3.6, one of the events described in Section 11.1(f), (g) or (h) shall have occurred, each Lender willAgent, on ~~the date the applicable Loan would have been made~~demand, ~~purchase an undivided participating interest in any Loan to be refunded in an amount equal to its Pro Rata Share of the aggregate amount of~~ such ~~Loan. (c) To the extent that the Administrative Agent has made any such amounts available and the settlement described above shall not yet have occurred~~amount, upon repayment of any Revolving Loans by a Borrower or with the collected proceeds on deposit in the Administrative Agent Payment Account as described in Section 3.5(b), the Administrative Agent may apply such amounts repaid directly to any amounts made available by the Administrative Agent pursuant to this Section 3.6. In lieu of weekly or more frequent settlements, the Administrative Agent may, at its option, at any time require each Lender to provide the Administrative Agent with immediately available funds representing its Pro Rata Share of each Revolving Loan, prior to the Administrative Agent’s disbursement of such Revolving Loan to Borrower. In such event, all Revolving Loans under this Agreement shall be made by the Lenders simultaneously and proportionately to their Pro Rata Shares. (d) If the Administrative Agent is not funding a particular Revolving Loan to a Borrower (or the Administrative Borrower for the benefit of such Borrower) pursuant to subsections (a) and (b) above on any day, but is requiring each Lender to provide the Administrative Agent with immediately available funds on the date of such Revolving Loan as provided in subsection (c) above, the Administrative Agent may assume that each Lender will make available to the Administrative Agent such Lender’s Pro Rata Share of the Revolving Loan requested or otherwise made on such day and the Administrative Agent may, in its discretion, but shall not be obligated to, cause a corresponding amount to be made available to or for the benefit of such Borrower on such day. If the Administrative Agent makes such corresponding amount available to a Borrower and such corresponding amount is not in fact made available to the Administrative Agent by such Lender, the Administrative Agent shall be entitled to recover such corresponding amount on demand from such Lender together with interest ~~thereon~~ thereon, for each day from ~~the~~ such date ~~such payment was due~~ until the date such amount is paid to Agent, equal to the ~~Administrative Agent at~~ greater of (i) the Federal Funds Effective Rate ~~for each day during such period and if such amounts are not paid within three~~ or (3ii) ~~days of~~ a rate determined by Agent in accordance with banking industry rules on interbank compensation, plus any administrative, processing, or similar fees customarily charged by Agent in connection with the Administrative Agent’s demand, at the highest interest rate provided for in Section 3.1 applicable to Base Rate Loans. During the period in which such Lender has not paid such corresponding amount to the Administrative Agent, notwithstanding anything to the contrary contained in this Agreement or any of the other Loan Documents, the amount so advanced by the Administrative Agent to or for the benefit of any Borrower shall, for all purposes hereof, be a Revolving Loan made by the Administrative Agent for its own account. Upon any such failure by a Lender to pay the Administrative Agent, the Administrative Agent shall promptly thereafter notify the Administrative Borrower of such failure and Borrowers shall pay such corresponding amount to the Administrative Agent for its own account within five (5) Business Days of the Administrative Borrower’s receipt of such noticeforegoing. (e) Nothing in this Section 3.6 or elsewhere in this Agreement or the other Loan Documents shall be deemed to require the Administrative Agent to advance funds on behalf of any Lender (including, without limitation, a Defaulting Lender) or to relieve any Lender from its obligation to fulfill its Commitment hereunder or to prejudice any rights that any Borrower may have against any Lender as a result of any default by any Lender hereunder in fulfilling its Commitment. In the event that a Lender is a Defaulting Lender, the Administrative Agent shall be entitled to refrain from remitting settlement amounts to the Defaulting Lender and, instead, shall be entitled to elect to implement the provisions set forth in Section 3.9.

Appears in 1 contract

Sources: Loan and Security Agreement (Telecommunication Systems Inc /Fa/)

Common use of Settlement Procedures Clause in Contracts