Apportionment and Application. (i) Except as may otherwise be agreed among Lenders, aggregate principal and interest payments shall be apportioned ratably among Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated for Administrative Agent’s sole and separate account after giving effect to any agreement with Lenders) shall, as applicable, be apportioned ratably among Lenders (according to the unpaid principal balance of the Obligations to which such fees and expenses relate held by each Lender). Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific fees, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of Default, shall be applied as follows: (A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full, (B) second, to pay any fees then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) under the Loan Documents, until paid in full, (C) third, to pay any fees then due to any or all of Lenders (after giving effect to any agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full, (D) fourth, ratably to pay accrued and unpaid Cash Interest and PIK Interest due in respect of the Loans, until paid in full, (E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payable, until paid in full, (F) sixth, ratably, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, until paid in full, (G) eighth, to pay any other Obligations, until paid in full, and (H) ninth, to Borrowers (to be remitted by wire transfer to an account designated by Borrower Representative) or such other Person entitled thereto under applicable law. For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding. (ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive. (iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall not be deemed to apply to any payment by Borrowers specified by Borrower Representative to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Towerstream Corp)
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders ----- under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the ------ Lenders under the Loan Documents, on a ratable basis, until paid in full,
C. third, to pay any fees then due to Administrative Agent (for its ----- separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. fourth, to pay any fees then due to any or all of the ------ Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourthE. fifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loansall Agent ----- Advances, until paid in full,
(E) fifthF. sixth, ratably to pay all outstanding principal amounts interest due in respect of the ----- Advances (other than Agent Advances) and the Swing Loans then due and payable, until paid in full,
(F) sixth, ratablyG. seventh, to pay the Make-Whole Premiumprincipal of all Agent Advances until ------- paid in full,
H. eighth, to pay the Non-Call Make Whole Premium or any Prepayment Premium principal of all Swing Loans until ------ paid in full,
I. ninth, to pay the principal of all Advances until paid in ----- full,
J. tenth, if an Event of Default has occurred and is ----- continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Commitment, as cash collateral in an amount up to 105% of the then due and owing by Borrowers, extant Letter of Credit Usage until paid in full,
(G) eighthK. eleventh, to pay any other Obligations, Obligations until paid in -------- full, and
(H) ninthL. twelfth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated ------- Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(h). --------------
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, Section 2.4(b) shall not be deemed to -------------- apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any ----------- other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 ----------- shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as otherwise provided with respect to Defaulting Lenders and except as may otherwise be agreed among the Lenders, aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated for Administrative Agent’s sole and separate account after giving effect to any agreement with the Lenders) shall, as applicable, be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such fees and expenses relate held by each Lender). Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific fees, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of Default, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of the Lenders under the Loan DocumentsDocuments (other than Lender Hedging Agreements), until paid in full,
(B) second, to pay any fees then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) under the Loan Documents, until paid in full,
(C) third, to pay any fees then due to any or all of the Lenders (after giving effect to any agreements between Administrative Agent and individual Lenders) under the Loan DocumentsDocuments (other than Lender Hedging Agreements), on a ratable basis, until paid in full,
(D) fourth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payable, until paid in full,
(F) sixth, ratably, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by BorrowersBorrower or its Subsidiaries, until paid in full,
(G) seventh, ratably, to pay all Lender Hedging Obligations then due and owing by Borrower or its Subsidiaries,
(H) eighth, to pay any other Obligations (including the provision of amounts to Administrative Agent, to be held by Administrative Agent, for the benefit of the Lenders and Lender-Related Persons, as cash collateral in an amount up to the amount determined by Administrative Agent in its reasonable discretion as the amount necessary to secure Borrower’s and its Subsidiaries’ Lender Hedging Obligations), until paid in full, and
(HI) ninth, to Borrowers Borrower (to be remitted by wire transfer to an account designated by Borrower RepresentativeBorrower) or such other Person entitled thereto under applicable law. For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender at such account and address as provided in the Register, as applicablewriting, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall not be deemed to apply to any payment by Borrowers Borrower specified by Borrower Representative to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) second, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthfifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payableAgent Advances, until paid in full,
(F) sixth, ratably, ratably to pay interest due in respect of the Make-Whole Premium, Advances (other than Agent Advances) and the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, Swing Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, and (ii) to Agent, to be held by Agent, for the benefit of ▇▇▇▇▇ Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower’s and its Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(L) twelfth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(M) thirteenth, to pay any other Obligations (including Bank Product Obligations, ) until paid in full, and
(HN) ninthfourteenth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, Section 2A(b) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H)foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among Lenders (according to the unpaid principal balance of the Obligations to which such fees and expenses relate held by each Lender)Lenders. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not Obligations (other than payments constituting the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders ----- under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the ------ Lenders under the Loan Documents, on a ratable basis, until paid in full,
C. third, to pay any fees then due to Administrative Agent (for its separate account----- accounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. fourth, to pay any fees then due to any or all of the Lenders ------ (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourth, ratably E. fifth, to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loansall Agent Advances, ----- until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payable, until paid in full,
(F) sixth, ratably, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, until paid in full,
(G) eighth, to pay any other Obligations, until paid in full, and
(H) ninth, to Borrowers (to be remitted by wire transfer to an account designated by Borrower Representative) or such other Person entitled thereto under applicable law. For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall not be deemed to apply to any payment by Borrowers specified by Borrower Representative to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Friede Goldman Halter Inc)
Apportionment and Application. (i) Except as otherwise provided with respect to Defaulting Lenders and except as may otherwise be agreed among the Lenders, aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated for Administrative Agent’s sole and separate account after giving effect to any agreement with the Lenders) shall, as applicable, be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such fees and expenses relate held by each Lender). Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i2.4(c)(i), (ii) and (iii), all payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific fees, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of Default, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of the Lenders under the Loan Documents, until paid in full,
(B) second, to pay any fees then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) under the Loan Documents, until paid in full,
(C) third, to pay any fees then due to any or all of the Lenders (after giving effect to any agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payable, until paid in full,, ▇▇▇▇▇▇ Energy Loan Agreement
(F) sixth, ratably, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by BorrowersBorrower or its Subsidiaries, until paid in full,
(G) seventh, ratably, to pay all Lender Hedging Obligations then due and owing by Borrower or its Subsidiaries,
(H) eighth, to pay any other Obligations (including the provision of amounts to Administrative Agent, to be held by Administrative Agent, for the benefit of the Lenders and Lender Related Persons, as cash collateral in an amount up to the amount determined by Administrative Agent in its reasonable discretion as the amount necessary to secure Borrower’s and its Subsidiaries’ Lender Hedging Obligations), until paid in full, and
(HI) ninth, to Borrowers Borrower (to be remitted by wire transfer to an account designated by Borrower RepresentativeBorrower) or such other Person entitled thereto under applicable law. For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender at such account and address as provided in the Register, as applicablewriting, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b2.4(b) shall not be deemed to apply to any payment by Borrowers Borrower specified by Borrower Representative to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) second, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthfifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payableAgent Advances, until paid in full,
(F) sixth, ratably, ratably to pay interest due in respect of the Make-Whole Premium, Advances (other than Agent Advances) and the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, Swing Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower Representative or its Subsidiaries in respect of Bank Products, until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full (which payments shall be applied first, to Base Rate Loans and then, to LIBOR Rate Loans),
(K) eleventh, if an Event of Default has occurred and is continuing, ratably (i) to Agent, (1) to pay the principal of all Advances until paid in full and (2) to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full and (ii) to Agent, to be held by Agent, for the benefit of ▇▇▇▇▇ Fargo or its Affiliates, as applicable, as cash collateral in an amount up to an amount equal to the lesser of (1) $2,500,000 and (2) the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower Representative's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(L) twelfth, to pay any other Obligations (including Bank Product Obligations, ) then due until paid in full, and
(HM) ninththirteenth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, Section 2.4(b) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Sources: Loan and Security Agreement (Alpine Group Inc /De/)
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) second, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthfifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payableAgent Advances, until paid in full,
(F) sixth, ratably, ratably to pay interest due in respect of the Make-Whole Premium, Advances (other than Agent Advances) and the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, Swing Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay any other Obligations, the principal of all Swing Loans until paid in full, and,
(HI) ninth, to Borrowers (to be remitted by wire transfer to an account designated by Borrower Representative) or such other Person entitled thereto under applicable law. For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall and at Agent’s election (which election Agent agrees will not be deemed made if an Overadvance would be created thereby), to apply to any payment by Borrowers specified by Borrower Representative to be for the payment of specific Obligations pay amounts then due and payable owing by Administrative Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, and (ii) to Agent, to be held by Agent, for the benefit of ▇▇▇▇▇ Fargo or prepayableits Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower’s and its Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(L) under twelfth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, (M) thirteenth, to pay any provision of this Agreement.other Obligations (including Bank Product Obligations) until paid in full, and
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Revolver Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) , B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full, C. third, to pay any fees then due to Administrative Agent (for its separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourthE. fifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loansall Agent Advances, until paid in full,
(E) fifthF. sixth, ratably to pay the principal of all outstanding principal amounts of the Loans then due and payable, Agent Advances until paid in full,
(F) sixthG. seventh, ratably, ratably to pay interest due in respect of the Make-Whole PremiumAdvances (other than Agent Advances), and the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, Swing Loans until paid in full,
(G) H. eighth, to pay any other Obligations, the principal of all Swing Loans until paid in full, and
(H) I. ninth, to Borrowers (to be remitted by wire transfer to an account designated by Borrower Representative) or such other Person entitled thereto under applicable law. For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall to pay the principal of all Advances until paid in full, J. tenth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be deemed made if an Overadvance would be created thereby), to apply to any payment by Borrowers specified by Borrower Representative to be for the payment of specific Obligations pay amounts then due and payable (owing by Administrative Borrower or prepayable) under any provision its Subsidiaries in respect of this Agreement.Bank Products, until paid in full,
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise specifically provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii2.4(c), all payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) second, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthfifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payableAgent Advances, until paid in full,
(F) sixth, ratably, ratably to pay interest due in respect of the Make-Whole PremiumAdvances (other than Agent Advances), the Non-Call Make Whole Premium or any Prepayment Premium then due Swing Loans, and owing by Borrowers, the Term Loan until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(K) eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(L) twelfth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(M) thirteenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full,
(N) fourteenth, if an Event of Default has occurred and is continuing, to pay any other ObligationsObligations (including the provision of amounts to Agent, until paid to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in fullan amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure Administrative Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products), and
(HO) ninthfifteenth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.4(b) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
C. third, to pay any fees then due to Administrative Agent (for its separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourthE. fifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loansall Agent Advances, until paid in full,
F. sixth, ratably to pay interest due in respect of the Advances (E) fifthother than Agent Advances), the Swing Loans, and the Term Loans until paid in full,
G. seventh, to pay the principal of all Agent Advances until paid in full,
H. eighth, ratably to pay all outstanding principal amounts of the Loans then due and payablepayable (other than as a result of an acceleration thereof) with respect to the Term Loan A until paid in full,
I. ninth, to pay the principal of all Swing Loans until paid in full,
J. tenth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(F) sixthK. eleventh, ratablyso long as no Event of Default has occurred and is continuing, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, principal of all Advances until paid in full,
L. twelfth, if an Event of Default has occurred and is continuing, ratably (Gi) eighthto pay the principal of all Advances until paid in full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower’s and its Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
M. thirteenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loans (ratably) until the Term Loans are paid in full,
N. fourteenth, if an Event of Default has occurred and is continuing, to pay any other ObligationsObligations (including the provision of amounts to Agent, until paid to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in fullan amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure Administrative Borrower’s and its Subsidiaries’ obligations in respect of the then extant Bank Products), and
(H) ninthO. fifteenth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.4(b) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H)foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Administrative ----- Agent or any of Lenders under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the ------ Lenders under the Loan Documents, on a ratable basis, until paid in full,
C. third, to pay any fees then due to Administrative Agent (for its ----- separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. fourth, to pay any fees then due to any or all of the ------ Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourthE. fifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loansall Agent ----- Advances, until paid in full,
(E) fifthF. sixth, ratably to pay all outstanding principal amounts interest due in respect of the ----- Advances (other than Agent Advances) and the Swing Loans then due and payable, until paid in full,
(F) sixth, ratablyG. seventh, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, principal of all Agent Advances ------- until paid in full,
(G) H. eighth, to pay the principal of all Swing Loans until ------ paid in full,
I. ninth, to pay the principal of all Advances until paid ----- in full,
J. tenth, if an Event of Default has occurred and is ----- continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and the Lenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
K. eleventh, to pay any other Obligations, Obligations until paid in -------- full, and
(H) ninthL. twelfth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe applicable ------- Borrower's Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(h). --------------
(iii) In each instance, so long as no Event of Default has occurred and is continuing, Section 2.4(b) shall not be deemed to -------------- apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in ----------- any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this Agreement.Section 2.4 shall control and govern. -----------
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than (i) payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific feesfees or (ii) prepayments received pursuant to Section 2.4(c) so long as no Event of Default has occurred and is continuing), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) second, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthfifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payableAgent Advances, until paid in full,
(F) sixth, ratably, ratably to pay interest due in respect of the Make-Whole PremiumAdvances (other than Agent Advances), the Non-Call Make Whole Premium or any Prepayment Premium then due Swing Loans and owing by Borrowers, the Term Loan until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay any other Obligations, the principal of all Swing Loans until paid in full, and,
(HI) ninth, to Borrowers (to be remitted by wire transfer to an account designated by Borrower Representative) or such other Person entitled thereto under applicable law. For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall and at Agent’s election (which election Agent agrees will not be deemed made if an Overadvance would be created thereby), to apply to any payment by Borrowers specified by Borrower Representative to be for the payment of specific Obligations pay amounts then due and payable owing by Administrative Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances and the Term Loan until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, (ii) to pay the principal of the Term Loan until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of ▇▇▇▇▇ Fargo or prepayableits Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower’s and its Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(L) under twelfth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, (M) thirteenth, to pay any provision of this Agreement.other Obligations (including Bank Product Obligations) until paid in full, and
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
C. third, to pay any fees then due to Administrative Agent (for its separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourthE. fifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loansall Agent Advances, until paid in full,
(E) fifthF. sixth, ratably to pay all outstanding principal amounts interest due in respect of the Loans then due and payable, Advances (other than Agent Advances) until paid in full,
(F) sixth, ratablyG. seventh, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, principal of all Agent Advances until paid in full,
(G) H. eighth, to pay any other Obligations, until paid in full, and
(H) ninth, to Borrowers (to be remitted by wire transfer to an account designated by Borrower Representative) or such other Person entitled thereto under applicable law. For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(bto pay (i) shall first, the entire principal of all Advances under the Temporary Overadvance Facility (or, if less, the portion of the Temporary Overadvance Facility that is then required to be repaid hereunder), but only, and to the extent that, after giving effect to the payment, Availability (other than with respect to the Temporary Overadvance Facility)is greater than $25,000,000.00, and then, the principal of all Advances (other than Advances made under the Temporary Overadvance Facility) until paid in full, I. ninth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be deemed made if an Overadvance would be created thereby), to apply to any payment by Borrowers specified by Borrower Representative to be for the payment of specific Obligations pay amounts then due and payable (owing by Administrative Borrower or prepayable) its Subsidiaries in respect of Bank Products, until paid in full, J. tenth, if an Event of Default has occurred and is continuing, first, to pay the principal of all Advances until paid in full, second, to Agent, to be held by Agent, for the ratable benefit of those Lenders having a Commitment, as cash collateral in an amount up to 105% of the then extant Letters of Credit until paid in full, third, to pay the principal of all Advances under any provision the Temporary Overadvance Facility, and fourth, to Agent, to be held by Agent, for the benefit of this Agreement.the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower’s and its Subsidiaries’ obligations in respect of the then outstanding Bank Products have been paid in full or the cash collateral amount has been exhausted,
Appears in 1 contract
Sources: Loan and Security Agreement (Childrens Place Retail Stores Inc)
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees, which shall be applied to such Obligations or fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, so long as no Event of Default has occurred and is continuing, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) second, so long as no Event of Default has occurred and is continuing, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, so long as no Event of Default has occurred and is continuing, to pay any fees then due to Administrative Agent (for its separate account, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(CD) thirdfourth, so long as no Event of Default has occurred and is continuing, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthfifth, ratably so long as no Event of Default has occurred and is continuing, to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payableAgent Advances, until paid in full,
(F) sixth, ratablyso long as no Event of Default has occurred and is continuing, ratably to pay interest due in respect of the Make-Whole PremiumAdvances (other than Agent Advances), the Non-Call Make Whole Premium or any Prepayment Premium then due Swing Loans, and owing by Borrowers, the Term Loan until paid in full,
(G) eighthseventh, so long as no Event of Default has occurred and is continuing, to pay any other Obligationsthe principal of all Agent Advances until paid in full,
(H) eighth, so long as no Event of Default has occurred and is continuing, ratably to pay all principal amounts then due and payable with respect to the Term Loan until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Swing Loans until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of Bank Products, until paid in full, and,
(HK) nintheleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all other Advances until paid in full,
(L) twelfth, so long as no Event of Default has occurred and is continuing, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representative) the Designated Account or such other Person entitled thereto under applicable law. For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.,
(iiM) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Registerthirteenth, as applicable, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Default or if an Event of Default has occurred and is continuing, this Section 2.3(b) shall not be deemed to apply pay any Lender Group Expenses and fees due to Agent (for its separate account, after giving effect to any payment by Borrowers specified by Borrower Representative letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(N) fourteenth, if an Event of Default has occurred and is continuing, to pay any Lender Group Expenses and fees (other than the Applicable Prepayment Premium) due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders), under the Loan Documents, on a ratable basis until paid in full,
(O) fifteenth, if an Event of Default has occurred and is continuing, ratably to pay interest due in respect of all Agent Advances, Advances and Swing Loans until paid in full,
(P) sixteenth, if an Event of Default has occurred and is continuing, ratably to pay the principal of all Agent Advances, Advances and Swing Loans until paid in full,
(Q) seventeenth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the payment benefit of specific Obligations Wells Fargo or its Affiliates, as applicable, as cash ▇▇llateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(R) eighteenth, if an Event of Default has occurred and is continuing, ratably to pay interest due in respect of the Term Loan until paid in full,
(S) nineteenth, if an Event of Default has occurred and payable is continuing, ratably to pay the outstanding principal balance of the Term Loan (or prepayablein the inverse order of the maturity of the installments due thereunder) under any provision until the Term Loan is paid in full,
(T) twentieth, if an Event of this Agreement.Default has occurred and is continuing, to Agent, to be held by Agent for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, (U) twenty-first, if an Event of Default has occurred and is continuing, ratably to pay the Applicable Prepayment Premium until paid in full,
Appears in 1 contract
Sources: Loan and Security Agreement (Mercury Air Group Inc)
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i)2.2 of this Agreement with respect to prepayments of the Term Loan, (ii) and (iii), all payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) second, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthfifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payableAgent Advances, until paid in full,
(F) sixth, ratably, ratably to pay interest due in respect of the Make-Whole PremiumAdvances (other than Agent Advances), the Non-Call Make Whole Premium or any Prepayment Premium then due Swing Loans, and owing by Borrowers, the Term Loan until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Parent or its Subsidiaries in respect of Bank Products, until paid in full,
(K) eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(L) twelfth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Parent's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(M) thirteenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full,
(N) fourteenth, if an Event of Default has occurred and is continuing, to pay any other ObligationsObligations (including the provision of amounts to Agent, until paid to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in fullan amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure Parent's and its Subsidiaries' obligations in respect of the then extant Bank Products), and
(HO) ninthfifteenth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.4(b) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among Lenders (according to the unpaid principal balance of the Obligations to which such fees and expenses relate held by each Lender)Lenders. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments that relate to principal or interest of specific LoansObligations pursuant to SECTIONS 2.2, 2.4, and 2.5 or not payments constituting the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) firstA. FIRST, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) secondB. SECOND, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
C. THIRD, to pay any fees then due to Administrative Agent (for its separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. FOURTH, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourthE. FIFTH, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loansall Agent Advances, until paid in full,
(E) fifthF. SIXTH, ratably to pay all outstanding principal amounts interest due in respect of the Advances (other than Agent Advances) and the Swing Loans until paid in full,
G. SEVENTH, so long as no Event of Default has occurred and is continuing or, if an Event of Default has occurred and is continuing and Agent agrees in its sole discretion, to pay interest due and payable in respect of the Term Loans until paid in full (if any Event of Default has occurred and is continuing, the priority of the payment of interest of the Term Loans is deferred to items "sixteenth" and "seventeenth" below),
H. EIGHTH, to pay the principal of all Agent Advances until paid in full,
I. NINTH, so long as no Event of Default has occurred and is continuing or, if any Event of Default has occurred and is continuing and Agent agrees in its sole discretion, to pay principal payments due and payable in respect of Term Loan A until paid in full (if any Event of Default has occurred and is continuing, the priority of payment of scheduled principal payments is deferred to item "sixteenth" below),
J. TENTH, so long as no Event of Default has occurred and is continuing or, if an Event of Default has occurred and is continuing and Agent agrees in its sole discretion, to pay principal payments due and payable in respect of Term Loan B until paid in full (if an Event of Default has occurred and is continuing, the priority of payment of scheduled principal payments is deferred to item "seventeenth" below),
K. ELEVENTH, to pay the principal of all Swing Loans until paid in full,
L. TWELFTH, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election will not be made if an Overadvance would be created thereby), to pay amounts then due and payableowing by the Loan Parties or their Subsidiaries in respect of all Bank Products, until paid in full,
(F) sixthM. THIRTEENTH, ratablyso long as no Event of Default has occurred and is continuing, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, principal of all Advances until paid in full,
N. FOURTEENTH, if an Event of Default has occurred and is continuing, ratably (Gi) eighthto pay the principal of all Advances until paid in full, and (ii) to Agent, to be held by Agent, for the benefit ▇▇▇▇▇ Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until the Loan Parties and their Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
O. FIFTEENTH, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
P. SIXTEENTH, if an Event of Default has occurred and is continuing, to pay interest due and payable and the outstanding principal balance of Term Loan A until Term Loan A is paid in full,
Q. SEVENTEENTH, if an Event of Default has occurred and is continuing, to pay interest due and payable and the outstanding principal balance of Term Loan B until Term Loan B is paid in full,
R. EIGHTEENTH, to pay any other Obligations (including Bank Product Obligations, ) until paid in full, and
(H) ninthS. NINETEENTH, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in SECTION 2.3(H).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, SECTION 2.4(B) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(iiv) Administrative Agent promptly Notwithstanding anything to the contrary, the Applicable Prepayment Premium shall distribute not be paid to each any Lender at such account and address as provided until all other Obligations have been paid in the Register, as applicable, such funds as it may be entitled to receivefull.
(iiivi) In the event of a direct conflict between the priority provisions of this SECTION 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each instanceother. In the event of any actual, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall irreconcilable conflict that cannot be deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSECTION 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan ----- Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the Lenders under ------ the Loan Documents, on a ratable basis, until paid in full,
C. third, to pay any fees then due to Administrative Agent (for its separate accountaccounts, ----- after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. fourth, to pay any fees then due to any or all of the Lenders (after ------ giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourthE. fifth, to pay interest due in respect of all Agent Advances, until paid ----- in full,
F. sixth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the LoansAdvances (other than ----- Agent Advances), and the Swing Loans until paid in full,
(E) fifthJ. tenth, ratably if an Event of Default has occurred and is continuing, to pay all outstanding principal amounts Agent, ----- to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the Loans then due and payable, extant Letter of Credit Usage until paid in full,
(F) sixth, ratably, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, until paid in full,
(G) eighthK. eleventh, to pay any other Obligations, Obligations until paid in full, andand --------
(H) ninthL. twelfth, to Borrowers Borrower (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such ------- other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(f). ---------------
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, Section 2.4(b) shall not be deemed to apply to any -------------- payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it ------------ is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this Agreement.Section 2.4 shall control and govern. ------------ -39-
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among Lenders (according to the unpaid principal balance of the Obligations to which such fees and expenses relate held by each Lender)Lenders. Except as otherwise provided set forth in clause sections (b)(iii) below or Section 2.3(c)(ic), (iid) and (iii)e) below hereof, all payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders Issuing Lender under the Loan Documents, until paid in full,
(B) second, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthfifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payableAgent Advances, until paid in full,
(F) sixth, ratably, ratably to pay interest due in respect of the Make-Whole Premium, Advances (other than Agent Advances) and the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, Swing Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and the Lenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, to pay any other Obligations, Obligations owing to any of Agent or Lenders until paid in full, and
(HL) ninthtwelfth, to Borrowers Administrative Borrower (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person (including the Court) entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(h).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, Section 2.4(b) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees), and and, during any time that a Cash Sweep Instruction is in effect, all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
C. third, to pay any fees then due to Administrative Agent (for its separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourthE. fifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loansall Agent Advances, until paid in full,
F. sixth, ratably to pay interest due in respect of the Advances (E) fifthother than Agent Advances), the Swing Loans, and the Term Loan until paid in full,
G. seventh, to pay the principal of all Agent Advances until paid in full,
H. eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
I. ninth, to pay the principal of all Swing Loans until paid in full,
J. tenth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Parent or its Restricted Subsidiaries in respect of Bank Products, until paid in full,
K. eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances (whether or not otherwise then due and payable) until paid in full,
L. twelfth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, and (ii) to Agent, to be held by Agent, for the benefit of W▇▇▇▇ Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Parent’s and its Restricted Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
M. thirteenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal amounts balance of the Loans Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full,
N. fourteenth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
O. fifteenth, to pay any other Obligations (including Bank Product Obligations) then due and payable, until paid in full,
(F) sixth, ratably, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, until paid in full,
(G) eighth, to pay any other Obligations, until paid in full, and
(H) ninthP. sixteenth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, Section 2.4(b) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or any other Loan Document.
(iv) For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H)foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Sources: Loan and Security Agreement (Mercator Software Inc)
Apportionment and Application. (i) Except as otherwise provided with respect to Defaulting Lenders and except as may otherwise be agreed among the Lenders, aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated for Administrative Agent’s 's sole and separate account after giving effect to any agreement with the Lenders) shall, as applicable, be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such fees and expenses relate held by each Lender). Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific fees, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of Default, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of the Lenders under the Loan DocumentsDocuments (other than Lender Hedging Agreements), until paid in full,
(B) second, to pay any fees then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) under the Loan Documents, until paid in full,
(C) third, to pay any fees then due to any or all of the Lenders (after giving effect to any agreements between Administrative Agent and individual Lenders) under the Loan DocumentsDocuments (other than Lender Hedging Agreements), on a ratable basis, until paid in full,
(D) fourth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Tranche A Loans and Tranche B Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Tranche A Loans and Tranche B Loans then due and payable, until paid in full,
(F) sixth, ratably, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by BorrowersBorrower or its Subsidiaries, until paid in full,
(G) seventh, ratably, to pay all Lender Hedging Obligations then due and owing by Borrower or its Subsidiaries,
(H) eighth, to pay any other Obligations (including the provision of amounts to Administrative Agent, to be held by Administrative Agent, for the benefit of the Lenders and Lender-Related Persons, as cash collateral in an amount up to the amount determined by Administrative Agent in its reasonable discretion as the amount necessary to secure ▇▇▇▇▇▇▇▇'s and its Subsidiaries' Lender Hedging Obligations), until paid in full, and
(HI) ninth, to Borrowers Borrower (to be remitted by wire transfer to an account designated by Borrower RepresentativeBorrower) or such other Person entitled thereto under applicable law. For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender at such account and address as provided in the Register, as applicablewriting, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall not be deemed to apply to any payment by Borrowers Borrower specified by Borrower Representative to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, ratably to pay any Lender Group Expenses then due to Administrative Agent or any of and Lenders under the Loan Documents, Documents until paid in full,
(B) second, ratably to pay any fees then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) or any of the Lenders under the Loan Documents, Documents until paid in full,
(C) third, to pay any fees then interest due to any or in respect of all of Lenders (after giving effect to any agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, Advances until paid in full,
(D) fourth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, Advances (other than Agent Advances) and the Swing Loans until paid in full,
(E) fifth, ratably to pay the principal of all outstanding principal amounts of the Loans then due and payable, Agent Advances until paid in full,
(F) sixth, ratably, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, principal of all Swing Loans until paid in full,
(G) seventh so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(H) eighth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the Letter of Credit Usage until paid in full,
(I) ninth, if an Event of Default has occurred and is continuing, to pay any other Obligations, Obligations until paid in full, and
(HJ) ninthtenth, to Borrowers Borrower (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.4(b) shall not apply to any payment made by Borrower to Agent and specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement. Anything to the contrary in this Agreement notwithstanding, unless so directed by Borrower, or unless a Default or an Event of Default has occurred and is continuing, neither Agent nor any Lender shall apply any payments which it receives to any LIBOR Rate Loan, except on the expiration date of the Interest Period applicable to any such LIBOR Rate Loan.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among Lendersprovided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents, aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative an Agent’s sole and separate account account, after giving effect to any agreement with agreements between an Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee or expense relates. Except as otherwise specifically provided in clause paragraph (b)(iiib)(iv) below or Section 2.3(c)(i), 2.4(c) or (ii) and (iiid), all payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific LoansCollections, or not constituting payment of specific fees, and all proceeds of Accounts or other Collateral received owned by Administrative Agent after the occurrence of an Event of Default, any US Loan Party and payments by any US Loan Party shall be applied as follows:in the order of payment set forth in subsection (A) below and all Collections, proceeds of Accounts or other Collateral owned by any Foreign Borrower or Foreign Guarantor and payments by any Foreign Borrower or Foreign Guarantor shall be applied in the order of payment set forth in subsection (B) below.
(A) Except as set forth above and subject to the terms of the Intercreditor Agreement, all Collections, proceeds of Accounts or other Collateral owned by any US Loan Party and payments by any US Loan Party shall be applied in the following order of payment:
(1) first, ratably to pay any Lender Group Expenses payable by the US Loan Parties then due to Administrative Agent or Collateral Agent or any of the Lenders under the Loan Documents, until paid in full,
(B2) second, ratably to pay any fees or premiums payable by US Loan Parties then due to Administrative Agent or Collateral Agent (for its their separate account, after giving effect to any agreements between Administrative Agent or Collateral Agent and the individual Lenders) or any of the Lenders under the Loan Documents until paid in full,
(3) third, to pay interest due in respect of all US Protective Advances until paid in full,
(4) fourth, ratably to pay interest due in respect of the US Advances (other than US Protective Advances), the US Swing Loans, and the Term Loan A until paid in full,
(5) fifth, to pay the principal of all US Protective Advances until paid in full,
(6) sixth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan A until paid in full,
(7) seventh, to pay the principal of all US Swing Loans until paid in full,
(8) eighth, so long as no Event of Default has occurred and is continuing, and at Administrative Agent’s election (which election Administrative Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by US Loan Parties in respect of Bank Products, until paid in full,
(9) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all US Advances until paid in full; provided, that payments shall be applied first to US Advances that are Base Rate Loans until paid in full and, second, to US Advances that are LIBOR Rate Loans until paid in full,
(10) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all US Advances until paid in full, (ii) to Collateral Agent, to be held by Collateral Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the US Letter of Credit Usage until collateralized in full, and (iii) to Collateral Agent, to be held by Collateral Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve in respect of Bank Products provided to any US Loan Party established prior to the occurrence of, and not in contemplation of, the subject Event of Default until US Loan Parties’ obligations in respect of such Bank Products have been paid in full or the cash collateral amount has been exhausted,
(11) eleventh, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of Term Loan A (in the inverse order of the maturity of the installments due thereunder) until Term Loan A is paid in full,
(12) twelfth, if an Event of Default has occurred and is continuing, to pay any other US Obligations (including the provision of amounts to Collateral Agent, to be held by Collateral Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Collateral Agent in its Permitted Discretion as the amount necessary to secure US Loan Parties’ obligations in respect of Bank Products),
(13) thirteenth, to the payment of the Foreign Obligations in the order of payment set forth in subsection (B) below, until paid in full; and
(14) fourteenth, to US Borrowers (to be wired to the applicable US Designated Account) or such other Person entitled thereto under Applicable Law.
(B) Except as set forth above, all Collections, proceeds of Accounts or other Collateral owned by any Foreign Borrower or Foreign Guarantor and payments by any Foreign Borrower or Foreign Guarantor shall be applied in the following order of payment:
(1) first, ratably to pay any Lender Group Expenses payable by the Foreign Borrowers and Foreign Guarantors then due to Canadian Administrative Agent, the European Administrative Agent or Collateral Agent or any of the Lenders under the Loan Documents, until paid in full,
(C2) second, ratably to pay any fees or premiums payable by the Foreign Borrowers and Foreign Guarantors then due to Administrative Agent (for its separate account) or any of the Lenders under the Loan Documents until paid in full,
(3) third, to pay any fees interest due in respect of all Protective Advances to Foreign Borrowers until paid in full,
(4) fourth, ratably to pay interest due in respect of the Foreign Advances (other than Protective Advances to Foreign Borrowers), the European Swing Loans and the Canadian Swing Loans until paid in full,
(5) fifth, to pay the principal of all Protective Advances to Foreign Borrowers until paid in full,
(6) sixth, ratably to pay the principal of all European Swing Loans and Canadian Swing Loans until paid in full,
(7) seventh, so long as no Event of Default has occurred and is continuing, and at Administrative Agent’s election (which election Administrative Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due to any and owing by Foreign Borrowers or all Foreign Guarantors in respect of Lenders (after giving effect to any agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basisBank Products, until paid in full,
(D) fourth8) eighth, ratably so long as no Event of Default has occurred and is continuing, ratably, to pay accrued and unpaid Cash Interest and PIK Interest due the principal of all Foreign Advances until paid in respect of the Loansfull; provided, that payments applied to Canadian Advances shall be applied first to Canadian Advances that are Base Rate Loans until paid in full and, second, to Canadian Advances that are LIBOR Rate Loans until paid in full,
(E9) fifthninth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all outstanding principal amounts of the Loans then due and payable, Foreign Advances until paid in full, and (ii) to Collateral Agent, to be held by Collateral Agent, for the ratable benefit of the Canadian Issuing Lender and those Lenders having a Canadian Revolver Commitment, as cash collateral in an amount up to 105% of the Canadian Letter of Credit Usage until collateralized in full, and (iii) to Collateral Agent, to be held by Collateral Agent, for the ratable benefit of the European Issuing Lender and those Lenders having a European Revolver Commitment, as cash collateral in an amount up to 105% of the European Letter of Credit Usage until collateralized in full, and (iv) to Collateral Agent, to be held by Collateral Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Foreign Bank Product Reserve in respect of Bank Products provided to Foreign Loan Parties until Foreign Loan Parties’ and the Significant Subsidiaries’ obligations in respect of such Bank Products have been paid in full or the cash collateral amount has been exhausted,
(F10) sixthtenth, ratably, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due if an Event of Default has occurred and owing by Borrowers, until paid in full,
(G) eighthis continuing, to pay any other ObligationsForeign Obligations (including the provision of amounts to Collateral Agent, until paid to be held by Collateral Agent, for the benefit of the Bank Product Providers, as cash collateral in fullan amount up to the amount determined by Collateral Agent in its Permitted Discretion as the amount necessary to secure Foreign Loan Parties’ obligations in respect of Bank Products), and
(H11) nintheleventh, to Foreign Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe applicable Canadian Designated Account or European Designated Account) or such other Person entitled thereto under Applicable Law;
(ii) Notwithstanding the foregoing Section 2.4(b)(i)(B), so long as no Event of Default has occurred and is continuing, except as set forth above, all Collections, proceeds of Accounts or other Collateral owned by (i) Canadian Borrowers shall first be applied only to Foreign Obligations of Canadian Borrowers in accordance with Section 2.4(b)(i)(B) and (ii) European Borrowers shall first be applied only to Foreign Obligations of European Borrowers in accordance with Section 2.4(b)(i)(B).
(iii) The applicable law. Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(e).
(iv) In each instance, so long as no Event of Default has occurred and is continuing, the order of payment provisions of this Section 2.4(b) shall not apply to any payment made by any Loan Party to Administrative Agent, Canadian Administrative Agent or European Administrative Agent, as applicable, and specified by such Loan Party to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(v) For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H)foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiivi) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Sources: Credit Agreement (Sitel Corp)
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A1) firstFIRST, ratably to pay any Lender Group Expenses then due to Administrative Agent or any of the Lenders under the Loan Documents, until paid in full,
(B2) secondSECOND, ratably to pay any fees or premiums then due to Administrative Agent (for its separate accountaccounts, after giving effect to any agreements between Administrative Agent and the individual Lenders) or any of the Lenders under the Loan Documents, Documents until paid in full,
(C3) thirdTHIRD, to pay any fees then interest due to any or in respect of all of Lenders (after giving effect to any agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, Protective Advances until paid in full,
(D4) fourthFOURTH, ratably to pay accrued and unpaid Cash Interest and PIK Interest due in respect the principal of the Loans, all Protective Advances until paid in full,
(E5) fifthFIFTH, ratably to pay all outstanding principal amounts interest due in respect of the Advances (other than Protective Advances) and the Term Loans then due and payable, until paid in full,
(F6) sixthSIXTH, ratably, ratably to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium all principal amounts then due and owing by Borrowers, payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(G7) eighthSEVENTH, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances (in the event there are Overadvances and Overadvance Subline Advances outstanding, first to Overadvances until paid in full and then to Overadvance Subline Advances) until paid in full,
(8) EIGHTH, if an Event of Default has occurred and is continuing, (A) with respect to all payment and proceeds other than proceeds of Term Loan Priority Collateral, (x) first, ratably to pay the principal of all Advances until paid in full (in the event there are Overadvances and Overadvance Subline Advances outstanding, first to Overadvances until paid in full and then to Overadvance Subline Advances), and (y) then, to pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of the installments due hereunder) until the Term Loan is paid in full, and (B) with respect to proceeds of the Term Loan Priority Collateral, (x) first, to pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of the installments due hereunder) until the Term Loan is paid in full, and (y) then, ratably to pay the principal of all Advances until paid in full (in the event there are Overadvances and Overadvance Subline Advances outstanding, first to Overadvances until paid in full and then to Overadvance Subline Advances),
(9) NINTH, if an Event of Default has occurred and is continuing, to pay any other Obligations, until paid in full, and
(H10) ninthTENTH, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. For purposes ."
2.17 SECTIONS 2.6(a), (b), (c) and (d) of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according Credit Agreement are hereby amended and restated to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address read as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall not be deemed to apply to any payment by Borrowers specified by Borrower Representative to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.follows:
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders, the Tranche A Lenders, the Tranche B Lenders and the Term Loan Lenders, as applicable (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) ), and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and separate account account, after giving effect to any agreement with agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders, the Tranche A Lenders, the Tranche B Lenders (according to and the unpaid principal balance of the Obligations to which such fees and expenses relate held by each Lender)Term Loan Lenders, as applicable. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:follows (provided that so long as no Event of Default has occurred and is continuing, Agent shall be entitled to apply the proceeds of Collections to reduce the balance of the Advances outstanding, applied first to Tranche B Advances and, after no Tranche B Advances are outstanding, to Tranche A Advances):
(A) first, ratably to pay any Lender Group Expenses then due to Administrative Agent or any of the Lenders under the Loan Documents, until paid in full,
(B) second, ratably to pay any fees or premiums then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) or any of the Lenders under the Loan Documents, Documents until paid in full,
(C) third, to pay any fees then interest due to any or in respect of all of Lenders (after giving effect to any agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, Protective Advances until paid in full,
(D) fourth, ratably to pay accrued and unpaid Cash Interest and PIK Interest due in respect the principal of the Loans, all Protective Advances until paid in full,
(E) fifth, so long as no Event of Default has occurred and is continuing, ratably to pay all outstanding principal amounts interest due in respect of the Tranche A Advances, the Tranche B Advances, the Swing Loans then due and payable, the Term Loan until paid in full,
(F) sixth, ratablyso long as no Event of Default has occurred and is continuing, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, principal of all Swing Loans until paid in full,
(G) seventh, so long as no Event of Default has occurred and is continuing, to pay any principal amount then due and payable with respect to the Term Loan until paid in full,
(H) eighth, so long as no Event of Default has occurred and is continuing, ratably to pay the principal of all Tranche B Advances until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Tranche A Advances until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, ratably to pay interest due in respect of the Tranche A Advances and the Swing Loans made by the Tranche A Lenders
(L) twelfth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Tranche A Advances and Swing Loans made by Tranche A Lenders until paid in full, (ii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrowers’ and its Subsidiaries’ obligations in respect of Bank Products have been paid in full or the cash collateral amount has been exhausted and (iii) to Agent, to be held by Agent, for the benefit of Issuing Lender in respect of Letters of Credit allocable to Tranche A Lenders, as cash collateral in an amount up to 105% of the Tranche A Letter of Credit Usage until paid in full,
(M) thirteenth, if an Event of Default has occurred and is continuing, ratably to pay interest due in respect of the Tranche B Advances, the Swing Loans made by the Tranche B Lenders and the Term Loan,
(N) fourteenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full, (ii) to pay the principal of all Tranche B Advances and Swing Loans made by Tranche B Lenders until paid in full, and (iii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender in respect of Letters of Credit allocable to Tranche B Lenders, as cash collateral in an amount up to 105% of the Tranche B Letter of Credit Usage until paid in full,
(O) fifteenth, if an Event of Default has occurred and is continuing, to pay any other ObligationsObligations (including the provision of amounts to Agent, until paid to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in fullan amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure Borrowers’ and its Subsidiaries’ obligations in respect of Bank Products), and
(HP) ninthsixteenth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(e).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.4(b) shall not apply to any payment made by Borrowers to Agent and specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (HO)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (HO), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(iiv) Administrative Agent promptly In the event of a direct conflict between the priority provisions of this Section 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall distribute be read together and construed, to the fullest extent possible, to be in concert with each Lender at such account other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and address as provided in the Register, as applicable, such funds as it may be entitled to receiveprovisions of this Section 2.4 shall control and govern.
(iiivi) In each instance, so long as no Default or Event The provisions of Default has occurred and is continuing, this Section 2.3(b2.4 constitute an agreement among Borrowers, the Lender Group and the Bank Product Provider as to the application of payments, Collections and proceeds of Collateral and do not constitute any subordination of (x) shall not be deemed any Obligations or (y) the right to apply to any payment by Borrowers specified by Borrower Representative to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this AgreementObligations.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
C. third, to pay any fees then due to Administrative Agent (for its separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourthE. fifth, to pay interest due in respect of all Agent Advances, until paid in full,
F. sixth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(E) fifthG. seventh, ratably to pay the principal of all outstanding Agent Advances until paid in full,
H. eighth, to pay the principal of all Swing Loans until paid in full,
I. ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts of the Loans then due and payableowing by Administrative Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(F) sixthJ. tenth, ratablyso long as no Event of Default has occurred and is continuing, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, principal of all Advances until paid in full,
K. eleventh, if an Event of Default has occurred and is continuing, ratably (Gi) eighthto pay the principal of all Advances until paid in full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and the Lenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
L. twelfth, if an Event of Default has occurred and is continuing, to pay any other ObligationsObligations (including the provision of amounts to Agent, until paid to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in fullan amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure Administrative Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products), and
(H) ninthM. thirteenth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.4(b) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Sources: Loan and Security Agreement (Aegis Communications Group Inc)
Apportionment and Application. (i) Except So long as may otherwise be agreed among Lendersno Application Event has occurred and is continuing, aggregate all principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of the fees and expenses received by Agent (other than fees or expenses designated that are for Administrative Agent’s sole and separate account after giving effect to any agreement with Lendersaccount) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations Term Loan Commitment or Obligation to which such fees and expenses relate held a particular fee or expense relates. All payments to be made hereunder by each Lender). Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all payments Borrowers shall be remitted to Administrative Agent and all (subject to Section 2.3(b)(iv) and Section 2.3(e)) such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Term Loan outstanding and, after all Obligations have been paid in full, to Borrowers or such other Person entitled thereto under Applicable Law.
(ii) At any time that an Application Event has occurred and is continuing, all payments remitted to Agent after the occurrence and all proceeds of an Event of Default, Collateral received by Agent shall be applied as follows:
(A) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Administrative Agent under the Loan Documents, until paid in full;
(B) second, to pay any fees or premiums then due to Agent under the Loan Documents until paid in full;
(C) third, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents, until paid in full,
(B) second, to pay any fees then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) under the Loan Documents, until paid in full,
(C) third, to pay any fees then due to any or all of Lenders (after giving effect to any agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,;
(D) fourth, ratably ratably, to pay accrued and unpaid Cash Interest and PIK Interest any fees or premiums then due in respect to any of the Loans, Lenders under the Loan Documents until paid in full,;
(E) fifth, ratably ratably, to pay all outstanding principal amounts interest accrued in respect of the Loans then due and payable, Term Loan until paid in full,;
(F) sixth, ratably (i) to pay the outstanding principal balance of the Term Loan until the Term Loan is paid in full and (ii) ratably, to pay the Make-Whole Premium, Hedge Providers based upon amounts then certified by the Non-Call Make Whole Premium or any Prepayment Premium then applicable Hedge Provider to Agent (in form and substance reasonably satisfactory to Agent) to be due and owing by Borrowers, until paid in full,payable to such Hedge Providers on account of Hedge Obligations;
(G) eighthseventh, ratably to pay any other Obligations, until paid in full, and;
(H) nintheighth, to Borrowers (to be remitted by wire transfer to an account designated by Borrower Representative) or such other Person entitled thereto under applicable law. For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency ProceedingApplicable Law.
(iiiii) Administrative Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender at such account and address as provided in the Register, as applicablewriting, such funds as it may be entitled to receive.
(iiiiv) In each instance, so long as no Default or Application Event of Default has occurred and is continuing, this Section 2.3(b2.3(b)(i) shall not be deemed to apply to any payment made by Borrowers any Borrower to Agent and specified by such Borrower Representative to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this AgreementAgreement or any other Loan Document.
(v) For purposes of Section 2.3(b)(ii), “paid in full” of a type of Obligation means payment in cash or immediately available funds of all amounts owing on account of such type of Obligation, including interest accrued after the commencement of any Insolvency Proceeding, default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(vi) In the event of a direct conflict between the priority provisions of this Section 2.3 and any other provision contained in this Agreement or any other Loan Document, 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.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Revolver Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and separate account account, after giving effect to any agreement with agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Revolver Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then all letter of credit fees and accrued interest due with respect to Administrative Agent or any LC Facility Letters of Lenders under the Loan Documents, Credit until paid in full,
(B) second, to pay any fees then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) under the Loan Documents, all unreimbursed LC Facility L/C Disbursements until paid in full,
(C) third, if an Event of Default has occurred and is continuing, to pay any fees then due Agent, to any or all be held by Agent, for the ratable benefit of Issuing Lender and those Lenders (after giving effect having a Commitment, as cash collateral in an amount up to any agreements between Administrative Agent and individual Lenders) under 105% of the Loan Documents, on a ratable basis, LC Facility Letter of Credit Usage until paid in full,
(D) fourth, ratably to pay accrued and unpaid Cash Interest and PIK Interest any Lender Group Expenses then due in respect to Agent or any of the LoansLenders under the Loan Documents, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts any fees or premiums then due to Agent (for its separate account, after giving effect to any agreements between Agent and individual Lenders) or any of the Loans then due and payable, Lenders under the Loan Documents until paid in full,
(F) sixth, ratably, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then interest due and owing by Borrowers, in respect of all Protective Advances until paid in full,
(G) seventh, to pay the principal of all Protective Advances until paid in full,
(H) eighth, ratably to pay interest due in respect of the Advances (other than Protective Advances) and the Swing Loans until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay any Bank Product Obligations then due and owing, until paid in full,
(K) twelfth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(L) thirteenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Commitment, as cash collateral in an amount up to 105% of the Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until the Bank Product Obligations have been paid in full or the cash collateral amount therefor has been exhausted,
(M) fourteenth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure the Bank Product Obligations, until paid in full), and
(HN) ninthfifteenth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(e).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.4(b) shall not apply to any payment made by Borrowers to Agent and specified by Borrowers to be for the payment of specific Revolver Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H)foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(iiv) Administrative Agent promptly In the event of a direct conflict between the priority provisions of this Section 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall distribute be read together and construed, to the fullest extent possible, to be in concert with each Lender at such account other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and address as provided in the Register, as applicable, such funds as it may be entitled to receiveprovisions of this Section 2.4 shall control and govern.
(iiivi) In each instancethe event, so long as no Default or pursuant to the provisions of Section 2.4(b)(i) above, Agent is holding cash collateral with respect to any LC Facility Letter of Credit Usage and/or Letter of Credit Usage in connection with the occurrence of an Event of Default has occurred and such Event of Default is continuing, this Section 2.3(b) shall not be deemed to apply to any payment by Borrowers specified by Borrower Representative to be for waived in accordance with the payment of specific Obligations then due and payable (or prepayable) under any provision terms of this Agreement, Agent agrees, unless the terms of such waiver provide otherwise, to release such cash collateral within 1 Business Day after the execution of such waiver.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and and, except as specifically provided in PARAGRAPH (B)(III) or SECTION 2.4(D) below, all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) firstFIRST, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) secondSECOND, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) thirdTHIRD, to pay any fees then due to Agent (for its separate accounts, after giving effect to any agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) FOURTH, to pay any fees then due to any or all of the Lenders (after giving effect to any agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthFIFTH, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payableAgent Advances, until paid in full,
(F) sixthSIXTH, ratably, ratably to pay interest due in respect of the Make-Whole PremiumAdvances (other than Agent Advances), the Non-Call Make Whole Premium or any Prepayment Premium then due Swing Loans, and owing by Borrowersthe Term Loan, until paid in full,
(G) eighthSEVENTH, to pay the principal of all Agent Advances until paid in full,
(H) EIGHTH, so long as no Event of Default has occurred and is continuing, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(I) NINTH, to pay the principal of all Swing Loans until paid in full,
(J) TENTH, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Parent or its Subsidiaries in respect of Bank Products, until paid in full,
(K) ELEVENTH, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(L) TWELFTH, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Parent's and its Subsidiaries' obligations in respect of Bank Products have been paid in full or the cash collateral amount has been exhausted,
(M) THIRTEENTH, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full,
(N) FOURTEENTH, to pay any other ObligationsObligations (including the provision of amounts to Agent, until paid to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in fullan amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure Borrowers' and its Subsidiaries' obligations in respect of Bank Products), and
(HO) ninthFIFTEENTH, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in SECTION 2.3(F).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this SECTION 2.4(B) shall not apply to any payment made by Borrowers to Agent and specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (HN)), “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; providedPROVIDED, howeverHOWEVER, that for the purposes of clause (HN), “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In the event of a direct conflict between the priority provisions of this SECTION 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each instanceother. In the event of any actual, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall irreconcilable conflict that cannot be deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSECTION 2.4 shall control and govern.
Appears in 1 contract
Sources: Loan and Security Agreement (Evergreen International Aviation Inc)
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i)SECTION 2.2 of this Agreement with respect to prepayments of the Term Loan, (ii) and (iii), all payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of Defaultin accordance with Section 2.8, shall be applied as follows:follows (such application shall be no later than the first Business Day after receipt thereof in accordance with Section 2.8):
(A) firstFIRST, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) secondSECOND, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) thirdTHIRD, to pay any fees then due to Agent (for its separate accounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) FOURTH, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthFIFTH, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payableAgent Advances, until paid in full,
(F) sixthSIXTH, ratably, ratably to pay interest due in respect of the Make-Whole PremiumAdvances (other than Agent Advances), the Non-Call Make Whole Premium or any Prepayment Premium then due Swing Loans, and owing by Borrowers, the Term Loan until paid in full,
(G) eighthSEVENTH, to pay the principal of all Agent Advances until paid in full,
(H) EIGHTH, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(I) NINTH, to pay the principal of all Swing Loans until paid in full,
(J) TENTH, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due -40- and owing by Parent or its Subsidiaries in respect of Bank Products, until paid in full,
(K) ELEVENTH, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(L) TWELFTH, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Parent or its Subsidiaries obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(M) THIRTEENTH, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full,
(N) FOURTEENTH, if an Event of Default has occurred and is continuing, to pay any other ObligationsObligations (including the provision of amounts to Agent, until paid to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in fullan amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure Parent or its Subsidiaries obligations in respect of the then extant Bank Products), and
(HO) ninthFIFTEENTH, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Investment Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in SECTION 2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this SECTION 2.4(b) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” " means payment of all applicable amounts owing under the Loan Documents according to the terms thereofDocuments, including related loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on -41- interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In the event of a direct conflict between the priority provisions of this SECTION 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each instanceother. In the event of any actual, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall irreconcilable conflict that cannot be deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSECTION 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise specifically provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii2.4(c), all payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) second, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthfifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payableAgent Advances, until paid in full,
(F) sixth, ratably, ratably to pay interest due in respect of the Make-Whole Premium, Advances (other than Agent Advances) and the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, Swing Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(L) twelfth, if an Event of Default has occurred and is continuing, to pay any other ObligationsObligations (including the provision of amounts to Agent, until paid to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in fullan amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure Administrative Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products), and
(HM) ninththirteenth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.4(b) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shallshall be apportioned ratably among the Lenders having a Pro Rata Share of the Revolver Commitment or type of Obligation, as applicable, be apportioned ratably among Lenders (according to the unpaid principal balance of the Obligations to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) firstA. FIRST, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) secondB. SECOND, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
C. THIRD, to pay any fees then due to Administrative Agent (for its separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. FOURTH, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourthE. FIFTH, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loansall Agent Advances, until paid in full,
(E) fifthF. SIXTH, ratably to pay all outstanding principal amounts interest due in respect of the Advances (other than Agent Advances) and the Swing Loans then due and payable, until paid in full,
(F) sixth, ratablyG. SEVENTH, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, principal of all Agent Advances until paid in full,
H. EIGHTH, to pay the principal of all Swing Loans until paid in full,
I. NINTH, to pay the principal of all Advances until paid in full (G) eighthapplied first to reduce any Overadvance),
J. TENTH, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
K. ELEVENTH, to pay any other Obligations, Obligations until paid in full, and
(H) ninthL. TWELFTH, to Borrowers Borrower (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in SECTION 2.3(h).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, SECTION 2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In the event of a direct conflict between the priority provisions of this SECTION 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each instanceother. In the event of any actual, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall irreconcilable conflict that cannot be deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSECTION 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i)2.2 of this Agreement with respect to prepayments of the Term Loan, (ii) and (iii), all payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of Defaultin accordance with Section 2.8, shall be applied as follows:follows (such application shall be no later than the first Business Day after receipt thereof in accordance with Section 2.8):
(A) first, to pay any Lender Group Expenses or indemnities then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) second, to pay any fees or premiums then due to Administrative Agent and WFF (for its separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) third, to pay interest due in respect of all Agent Advances, until paid in full,
(D) fourth, to pay the principal of all Agent Advances until paid in full,
(E) fifth, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(F) sixth, to pay any fees or premiums then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DG) fourthseventh, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Advances (other than Agent Advances), the Swing Loans, and the Term Loan until paid in full,
(H) eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Parent or its Subsidiaries in respect of Bank Products, until paid in full,
(EK) fiftheleventh, ratably so long as no Event of Default has occurred and is continuing, to pay the principal of all outstanding principal amounts of the Loans then due and payable, Advances until paid in full,
(FL) sixthtwelfth, ratablyif an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Parent or its Subsidiaries obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(M) thirteenth, if an Event of Default has occurred and is continuing, to pay the Make-Whole Premium, outstanding principal balance of the Non-Call Make Whole Premium or any Prepayment Premium then Term Loan (in the inverse order of the maturity of the installments due and owing by Borrowers, thereunder) until the Term Loan is paid in full,
(GN) eighthfourteenth, if an Event of Default has occurred and is continuing, to pay any other ObligationsObligations (including the provision of amounts to Agent, until paid to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in fullan amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure Parent or its Subsidiaries obligations in respect of the then extant Bank Products), and
and (HO) ninthfifteenth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Investment Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.4(b) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “paid in full” means payment of all applicable amounts owing under the Loan Documents according to the terms thereofDocuments, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations Term Loans to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations Term Loans or the type of other Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
C. third, to pay any fees then due to Administrative Agent (for its separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourthE. fifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, Term Loans until paid in full,
(E) fifthF. sixth, ratably to pay all outstanding the principal amounts of the Term Loans then due and payable, until paid in full,
(F) sixthG. seventh, ratably, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due if an Event of Default has occurred and owing by Borrowers, until paid in full,
(G) eighthis continuing, to pay any other Obligations, until paid in full, and
(H) ninthH. eighth, to Borrowers (to be remitted by wire transfer to an account designated by Borrower Representative) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, Section 2.4(b) shall not be deemed to apply to any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H)foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full, B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(B) secondC. third, to pay any fees then due to Administrative Agent (for its separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourth, ratably to pay accrued and unpaid Cash Interest and PIK Interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payable, until paid in full,
(F) sixth, ratably, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, until paid in full,
(G) eighth, to pay any other Obligations, until paid in full, and
(H) ninth, to Borrowers (to be remitted by wire transfer to an account designated by Borrower Representative) or such other Person entitled thereto under applicable law. For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall not be deemed to apply to any payment by Borrowers specified by Borrower Representative to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
Appears in 1 contract
Sources: Loan and Security Agreement (Majestic Star Casino LLC)
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including the Lender Side Letter Agreement and any other agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to the Lender Side Letter Agreement and any agreement with other agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee or expense relates. Except as otherwise specifically provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii2.4(c), all payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, or not constituting payment of specific feesObligations to which a particular fee or expense relates), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) second, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to the Lender Side Letter Agreement and any other agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to the Lender Side Letter Agreement and any other agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourth; provided that, ratably to pay accrued if an Event of Default has occurred and unpaid Cash Interest and PIK Interest due in respect is continuing, the priority of the Loanspayment of any fee payable to any Lender with respect to its Term Loan B shall, until paid unless the Required Revolver/Term Loan A Lenders agree in fulltheir sole discretion to forego deferring such payment, be deferred to item "fifteenth" below,
(E) fifth, ratably to pay interest due in respect of all outstanding principal amounts of the Loans then due and payable, Agent Advances until paid in full,
(F) sixth, ratablyratably to pay interest due in respect of the Advances (other than Agent Advances), the Swing Loans, and the Term Loans until paid in full; provided that, if an Event of Default has occurred and is continuing, the priority of the payment of any interest payable to any Lender with respect to its Term Loan B shall, unless the Required Revolver/Term Loan A Lenders agree in their sole discretion to forego deferring such payment, be deferred to item "sixteenth" below,
(G) seventh, to pay the Make-Whole Premiumprincipal of all Agent Advances until paid in full,
(H) eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Non-Call Make Whole Premium or any Prepayment Premium Term Loan A until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to Term Loan B until paid in full,
(J) tenth, to pay the principal of all Swing Loans until paid in full,
(K) eleventh, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by BorrowersParent or its Subsidiaries in respect of Bank Products until paid in full,
(L) twelfth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(M) thirteenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established on or prior to the date that the Bank Product Provider provides the applicable Bank Product, until Parent's and its Subsidiaries' obligations in respect of Bank Products have been paid in full or the cash collateral amount has been exhausted,
(N) fourteenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of Term Loan A (in the inverse order of the maturity of the installments due thereunder) until Term Loan A is paid in full,
(O) fifteenth, if an Event of Default has occurred and is continuing, to pay fees due in respect of Term Loan B, until paid in full,
(GP) eighthsixteenth, if an Event of Default has occurred and is continuing, to pay interest due in respect of Term Loan B, until paid in full,
(Q) seventeenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of Term Loan B, until paid in full,
(R) eighteenth, if an Event of Default has occurred and is continuing, to pay any other ObligationsObligations (including the provision of amounts to Agent, until paid to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in fullan amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure Parent's and its Subsidiaries' obligations in respect of Bank Products), and
(HS) ninthnineteenth, to Borrowers Borrower (to be remitted wired to the Designated Account specified by wire transfer to an account designated by Borrower RepresentativeBorrower) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.4(b) shall not apply to any payment made by Borrower to Agent and specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (HR)), “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, default are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (HR), “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(iiv) Administrative Agent promptly Notwithstanding anything to the contrary in this Agreement, the Applicable Prepayment Premium shall distribute not be paid to each any Lender at such account and address as provided until all other Obligations have been paid in the Register, as applicable, such funds as it may be entitled to receivefull.
(iiivi) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Sources: Loan and Security Agreement (eTelecare Global Solutions, Inc.)
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and separate account account, after giving effect to any agreement with agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating to principal or interest of specific Loans, or not constituting payment of specific feespayments, and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the Loan Documents, until paid in full,
(B) second, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accounts, after giving effect to any agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthfifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loans, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payableAgent Advances, until paid in full,
(F) sixth, ratably, ratably to pay interest due in respect of the Make-Whole Premium, Term Loans (other than portions of the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, Term Loans consisting of Agent Advances) until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loans until paid in full,
(I) ninth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loans (in the inverse order of the maturity of the installments due thereunder) until the Term Loans are paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, to pay any other Obligations, until paid in full, and
(HK) nintheleventh, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or such other Person entitled thereto under applicable law. .
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive.
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.4(b) shall not apply to any payment made by Borrowers to Agent and specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H)), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H)foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSection 2.4 shall control and govern.
Appears in 1 contract
Sources: Loan and Security Agreement (Paincare Holdings Inc)
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Administrative Agent or any of Lenders under the ----- Loan Documents, until paid in full,
(B) second, to pay any fees Lender Group Expenses then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) Lenders under ------ the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to any or all of Lenders Agent (for its separate accounts, ----- after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after ------ giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(DE) fourthfifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loansall Agent Advances, until paid in full,
(E) fifth, ratably to pay all outstanding principal amounts of the Loans then due and payable, until paid ----- in full,
(F) sixth, ratably, ratably to pay interest due in respect of the Make-Whole PremiumAdvances (other ----- than Agent Advances), the Non-Call Make Whole Premium or any Prepayment Premium then due Swing Loans, and owing by Borrowers, the Term Loan until paid in full,
(GH) eighth, ratably to pay all principal amounts then due and payable ------ (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, ----- and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing in respect of Bank Product Obligations until paid in full,
(K) eleventh, so long as no Event of Default has occurred and is -------- continuing, to pay the principal of all Advances until paid in full,
(L) twelfth, so long as no Event of Default has occurred and is continuing, ------- to pay any other Obligations until paid in full,
(M) thirteenth, if an Event of Default has occurred and is continuing, to ---------- pay amounts to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure the Bank Product Obligations,
(N) fourteenth, if an Event of Default has occurred and is continuing, ---------- ratably (i) to pay the principal of all Advances until paid in full, and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(O) fifteenth, if an Event of Default has occurred and is continuing, to --------- pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full,
(P) sixteenth, if an Event of Default has occurred and is continuing, to --------- pay any other Obligations, until paid in full, and
(HQ) ninthseventeenth, to Borrowers Borrower (to be remitted by wire transfer wired to an account designated by Borrower Representativethe Designated Account) or ----------- such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in SECTION 2.3(f). ---------------
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, SECTION 2.4(b) shall not be deemed to -------------- apply to any payment made by Borrower to Agent specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the same foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In the event of a direct conflict between the priority provisions of this SECTION 2.4 and other provisions contained in any other Loan ------------ Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each instanceother. In the event of any actual, so long as no Default or Event of Default has occurred and is continuing, this Section 2.3(b) shall irreconcilable conflict that cannot be deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this AgreementSECTION 2.4 shall ------------ control and govern.
Appears in 1 contract
Apportionment and Application. (i) Except as may otherwise be agreed among provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of the fees and expenses (other than fees or expenses designated that are for Administrative Agent’s sole and 's separate account account, after giving effect to any agreement with letter agreements between Agent and individual Lenders) shall, as applicable, shall be apportioned ratably among the Lenders (according to the unpaid principal balance having a Pro Rata Share of the Obligations type of Commitment or Obligation to which such fees and expenses relate held by each Lender)a particular fee relates. Except as otherwise provided in clause (b)(iii) below or Section 2.3(c)(i), (ii) and (iii), all All payments shall be remitted to Administrative Agent and all such payments not relating (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Loans, Obligations or not constituting which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent after the occurrence of an Event of DefaultAgent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Administrative ----- Agent or any of Lenders under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to ------ the Lenders under the Loan Documents, on a ratable basis, until paid in full,
C. third, to pay any fees then due to Administrative Agent (for its ----- separate accountaccounts, after giving effect to any letter agreements between Administrative Agent and the individual Lenders) under the Loan Documents, Documents until paid in full,
(C) thirdD. fourth, to pay any fees then due to any or all of ------ the Lenders (after giving effect to any letter agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(D) fourthE. fifth, ratably to pay accrued and unpaid Cash Interest and PIK Interest interest due in respect of the Loansall Agent ----- Advances, until paid in full,
(E) fifthF. sixth, ratably to pay all outstanding principal amounts interest due in respect of the ----- Advances (other than Agent Advances) and the Swing Loans until paid in full,
G. seventh, to pay the principal of all Agent Advances ------- until paid in full,
H. eighth, to pay the principal of all Swing Loans ------ until paid in full,
I. ninth, so long as no Event of Default has occurred ----- and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and payableowing by Administrative Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(F) sixthJ. tenth, ratablyso long as no Event of Default has occurred ----- and is continuing, to pay the Make-Whole Premium, the Non-Call Make Whole Premium or any Prepayment Premium then due and owing by Borrowers, principal of all Advances until paid in full,
K. eleventh, if an Event of Default has occurred and is -------- continuing, ratably (Gi) eighthto pay the principal of all Advances until paid in full, and (ii) to Agent, to be held by Agent, for the benefit of ▇▇▇▇▇ Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
L. twelfth, if an Event of Default has occurred and is ------- continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and the other Lenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
M. thirteenth, to pay any other Obligations (including ---------- Bank Product Obligations, ) until paid in full, and
(H) ninthand N. fourteenth, to Borrowers (to be remitted by wire transfer wired to an account designated by Borrower Representativethe ---------- Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.2. -----------
(iii) In each instance, so long as no Event of Default has occurred and is continuing, Section 2.3(b) shall not be deemed to apply to -------------- any payment by Borrowers specified by Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing (other than clause (H))foregoing, “"paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (H), “paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ii) Administrative Agent promptly shall distribute to each Lender at such account and address as provided in the Register, as applicable, such funds as it may be entitled to receive.
(iiiv) In each instance, so long as no Default or Event the event of Default has occurred and is continuing, a direct conflict between the priority provisions of this Section 2.3(b) 2.3 and other provisions contained in any other ----------- Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall 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 deemed to apply to any payment by Borrowers specified by Borrower Representative to be for resolved as aforesaid, the payment of specific Obligations then due terms and payable (or prepayable) under any provision provisions of this Agreement.Section 2.3 shall control and govern. -----------
Appears in 1 contract