Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:30 p.m., New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents after an Event of Default has occurred and is continuing and all or any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of the Required Lenders be applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due to the Agents or any Issuing Bank from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders), third, to pay interest due and payable in respect of any Revolving Loans, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders), fourth, to pay the principal of the Protective Advances, fifth, to prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventh, to the payment of any other Secured Obligation due to the Agents or any Lender by the Borrower, twelfth, as provided for under the Intercreditor Agreement, and thirteenth, to the Borrower or as the Borrower shall direct. (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements, Swingline Loans or Protective Advances resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements, Swingline Loans or Protective Advances and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements, Swingline Loans and Protective Advances of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements, Swingline Loans and Protective Advances; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements, Swingline Loans or Protective Advances to any assignee or participant, other than to the Borrower or any subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as applicable, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Appears in 3 contracts

Sources: Abl Credit Agreement (TMS International Corp.), Abl Credit Agreement (TMS International Corp.), Abl Credit Agreement (Tube City IMS CORP)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.13, 2.14 or 2.15~~, 2.16 or 2.17~~, or otherwise) prior to ~~1:30 p.m.~~12:00 noon, New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except ~~payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except~~ that payments pursuant to Sections ~~2.15~~2.13, ~~2.16~~2.14, ~~2.17~~ 2.15 and 9.03 ~~shall~~ may at the Borrower’s election be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it it, except as otherwise provided, for the account of any other Person to the appropriate recipient promptly following receipt thereof. If Unless otherwise specified, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents after an Event of Default has occurred and is continuing and all or any portion of the Loans shall have been accelerated hereunder pursuant to ~~Section 7.01~~Article VII, shall upon election by the Agents or at the direction of the Required Lenders be applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due to the Agents or any Issuing Bank from the Borrower (other than in connection with ~~Banking Services or Secured~~ Hedging Obligations), second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with ~~Banking Services or Secured~~ Hedging ~~Obligations and other than fees owing to the Tranche A-1 Lenders~~Obligations), third, to pay interest due and payable in respect of ~~any Revolving~~ the Loans, ~~Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders)~~ratably, fourth~~, to pay the principal of the Protective Advances, fifth~~, to prepay principal on the Loans ~~(other than the Protective Advances)~~ and any unreimbursed ~~LC Disbursements~~L/C Disbursements and any amounts owing with respect to Hedging Obligations, ~~ratably (other than principal owing to the Tranche A-1 Lenders)~~ratably, ~~sixth~~fifth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Pre-Funded L/C Exposure on such date, to be held in the LC Pre-Funded L/C Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhsixth, to the payment of any other Secured Obligation due to the Agents or any Lender (or any Affiliate thereof) by the Borrower, ~~twelfth~~seventh, as provided for under the Intercreditor Agreement, and ~~thirteenth~~eighth, to the Borrower or as the Borrower shall direct. (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in ~~LC Disbursements, Swingline Loans or Protective Advances~~ L/C Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in ~~LC Disbursements, Swingline Loans or Protective Advances~~ L/C Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in ~~LC Disbursements, Swingline Loans and Protective Advances~~ L/C Disbursements of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC L/C Disbursements~~, Swingline Loans and Protective Advances~~; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in ~~LC Disbursements, Swingline Loans or Protective Advances~~ L/C Disbursements to any assignee or participant, other than to the Borrower or any subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank ~~hereunder~~ that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as applicable, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections ~~2.04(b~~2.03(a), ~~2.05(b~~2.16(c), ~~2.06(d~~2.19(d) or (e~~), 2.07(b), 2.18(c~~) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Appears in 3 contracts

Sources: Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (TMS International Corp.), Term Loan Credit Agreement (Tube City IMS CORP)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the Borrower~~ The Borrowers shall make each payment required to be made by it them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to ~~1:30~~ 2:00 p.m., ~~New York City~~ Chicago time, on the date when due, in immediately available funds, without ~~set-~~set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent ~~to the applicable account designated to the Borrower by the Administrative Agent~~at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, except payments to be made directly to the ~~applicable~~ Issuing Bank or ~~the~~ Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such paymentdollars. At all times that full cash dominion is in effect pursuant to Section ~~2.21(d)~~7.3 of the Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks ~~and cash or other~~ (in addition to immediately available funds applied pursuant to Section 2.10(b)) from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the ~~day of~~ Business Day after receipt, subject to actual collection. (b) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all~~ Any proceeds of Collateral received by the ~~Agents~~ Administrative Agent (i) not constituting (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers), (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11) or (C) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b)) or (ii) after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, shall be ~~applied,~~ applied ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the ~~Agents or any~~ Administrative Agent and the Issuing Bank from the ~~Borrower~~ Borrowers (other than in connection with Banking Services or ~~Secured Hedging~~ Swap Obligations), second~~, ratably~~, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower~~ Borrowers (other than in connection with Banking Services or ~~Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders~~Swap Obligations), third, to pay interest due ~~and payable~~ in respect of ~~any Revolving Loans, Swingline Loans~~ the Overadvances and ~~any~~ Protective Advances~~, ratably (other than interest owing to the Tranche A-1 Lenders)~~, fourth, to pay the principal of the Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably, sixth, to prepay principal on the Loans (other than the Overadvances and Protective Advances) and unreimbursed LC ~~Disbursements~~Disbursements ratably, ~~ratably~~ seventh, on or after (~~other than principal owing~~ i) the Maturity Date, (ii) the occurrence of any Event of Default with respect to any Borrower described in clause (h) or (i) of Article VII or (iii) the ~~Tranche A-1 Lenders), sixth~~declaration by the Administrative Agent or the Required Lenders that the Loans are due and payable pursuant to Article VIII, to pay an amount to the Administrative Agent equal to ~~101.5%~~ one hundred five percent (105%) of the aggregate undrawn face amount of all outstanding Letters of Credit and the aggregate amount of any unpaid LC ~~Exposure on such date~~Disbursements, to be held ~~in the LC Collateral Account~~ as cash collateral for such Obligations, ~~seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations),~~ eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services ~~to the extent they constitute Secured Obligations~~ and ~~Secured Hedging~~ Swap Obligations, ratably, ~~eleventh~~ninth, to ~~the payment of~~ pay any other Secured Obligation due to the ~~Agents~~ Administrative Agent or any Lender by the ~~Borrower, twelfth, as provided for under the Intercreditor Agreement~~Borrowers, and ~~thirteenth~~tenth, to the ~~Borrower~~ Borrowers or as whomever a court of competent jurisdiction may order. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower Representative, or unless a Default is in existence, neither the Administrative Agent nor any Lender shall ~~direct~~apply any payment which it receives to any Eurodollar Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or (b) in the event, and only to the extent, that there are no outstanding ABR Loans of the same Class and, in any such event, the Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. (c) At the election of the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of any Borrower maintained with the Administrative Agent. Each Borrower hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) the Administrative Agent to charge any deposit account of any Borrower maintained with the Administrative Agent for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents. (d) If any Lender shall, by exercising any right of ~~set-~~set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC ~~Disbursements, Swingline Loans and Protective Advances~~ Disbursements of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements~~, Swingline Loans and Protective Advances~~; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the ~~Borrower~~ Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements to any assignee or participant, other than to the ~~Borrower~~ Borrowers or any ~~subsidiary~~ Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). ~~The~~ Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against ~~the~~ such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the~~ such Borrower in the amount of such participation. (de) Unless the Administrative Agent shall have received notice from the Borrower Representative prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the ~~applicable~~ Issuing Bank hereunder that the ~~Borrower~~ Borrowers will not make such payment, the Administrative Agent may assume that the ~~Borrower has~~ Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the ~~applicable~~ Issuing Bank, as ~~applicable~~the case may be, the amount due. In such event, if the ~~Borrower has~~ Borrowers have not in fact made such payment, then each of the Lenders or the ~~applicable~~ Issuing Bank, as ~~applicable~~the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (ef) If any Lender shall fail to make any payment required to be made by it ~~pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c)~~hereunder, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations ~~under such Sections~~ hereunder until all such unsatisfied obligations are fully paid.

Appears in 3 contracts

Sources: Credit Agreement (Furniture Brands International Inc), Credit Agreement (Furniture Brands International Inc), Credit Agreement (Furniture Brands International Inc)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to ~~1:30~~ 3:00 p.m., New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent ~~to the applicable account designated to the Borrower by the Administrative Agent~~at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, except payments to be made directly to the ~~applicable~~ Issuing Bank or ~~the~~ Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled ~~thereto~~thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment ~~hereunder~~ under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collectiondollars. (b) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all~~ Any proceeds of Collateral received by the ~~Agents~~ Administrative Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower), (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11) or (C) amounts used to cash collateralize LC Exposure or (ii) after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, shall be ~~applied,~~ applied ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the ~~Agents or any~~ Administrative Agent, the Swingline Lender and the Issuing Bank from the Borrower (other than in connection with Banking Services or ~~Secured Hedging~~ Swap Obligations), second~~, ratably~~, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services or ~~Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders~~Swap Obligations), third, to pay interest then due and payable ~~in respect of any Revolving Loans, Swingline~~ on the Loans ~~and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders)~~ratably, fourth~~, to pay the principal of the Protective Advances, fifth~~, to prepay principal on the Loans ~~(other than the Protective Advances)~~ and unreimbursed LC ~~Disbursements~~Disbursements and to pay any amounts owing with respect to Swap Obligations and Banking Services Obligations up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, ratably (~~other than principal owing~~ with amounts allocated to the ~~Tranche A-1 Lenders~~Term Loans of any Class applied to reduce the subsequent scheduled repayments of the Term Loans of such Class to be made pursuant to Section 2.10 ratably based on the amount of such scheduled repayments), ~~sixth~~fifth, to pay an amount to the Administrative Agent equal to ~~101.5%~~ one hundred percent (100%) of the aggregate LC ~~Exposure on such date~~Exposure, to be held ~~in the LC Collateral Account~~ as cash collateral for such Obligations, ~~seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due~~ and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhsixth, to the payment of any other Secured Obligation due to the ~~Agents~~ Administrative Agent or any Lender from the Borrower or any other Loan Party. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower, ~~twelfth~~or unless a Default is in existence, ~~as provided for under~~ neither the ~~Intercreditor Agreement~~Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan of a Class, except (i) on the expiration date of the Interest Period applicable thereto, or (ii) in the event, and ~~thirteenth,~~ only to the ~~Borrower or as~~ extent, that there are no outstanding ABR Loans of the same Class and, in any such event, the Borrower shall ~~direct~~pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. Notwithstanding the foregoing, Secured Obligations arising under Banking Services Obligations or Swap Obligations shall be excluded from the application in clause fourth described above and paid in clause sixth if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may have reasonably requested from the applicable provider of such Banking Services or Swap Obligations. (c) If At the election of the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents that are not paid when due (after any applicable grace period) in accordance with the Loan Documents, subject to five Business Days prior written notice to the Borrower, may be paid from the proceeds of Borrowings made hereunder, whether made following a request by the Borrower pursuant to Section 2.03 or 2.05 or a deemed request as provided in this Section 2.18 or may be deducted from any deposit account of the Borrower maintained with the Administrative Agent. The Borrower hereby irrevocably authorizes, solely to the extent a payment is not paid by a Loan Party by the required time set forth in the Loan Documents (after any applicable grace period) (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans), and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03 or 2.05, as applicable, and (ii) the Administrative Agent to charge any deposit account of the Borrower maintained with the Administrative Agent for each payment of principal, interest and fees due hereunder or any other amount due under the Loan Documents. (d) If, except as otherwise expressly provided herein, any Lender shall, by exercising any right of ~~set-~~set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its ~~Loans~~ Loans, Commitments or participations in LC ~~Disbursements,~~ Disbursements or Swingline Loans ~~or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC ~~Disbursements,~~ Disbursements or Swingline Loans ~~or Protective Advances~~ and accrued interest thereon than the proportion received by any other similarly situated Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC ~~Disbursements,~~ Disbursements or Swingline Loans ~~and Protective Advances~~ of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by ~~the~~ all such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Loans~~ Loans, Commitments and participations in LC ~~Disbursements,~~ Disbursements or Swingline ~~Loans and Protective Advances~~Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its ~~Loans~~ Loans, Commitments or participations in LC ~~Disbursements,~~ Disbursements and Swingline Loans ~~or Protective Advances~~ to any assignee or participant, other than to the Borrower or any ~~subsidiary~~ Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (de) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the ~~applicable~~ Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the ~~applicable~~ Issuing Bank, as ~~applicable~~the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the ~~applicable~~ Issuing Bank, as ~~applicable~~the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (ef) If any Lender shall fail to make any payment required to be made by it pursuant to Sections ~~2.04(b), 2.05(b)~~2.05, 2.06(d) or (e), 2.07(b), ~~2.18(c~~2.18(e) or 9.03(c)) hereunder, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent, the Swingline Lender or the Issuing Bank to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully ~~paid~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections. Application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent in its discretion.

Appears in 3 contracts

Sources: Credit Agreement (Planet Fitness, Inc.), Credit Agreement (Planet Fitness, Inc.), Credit Agreement (Planet Fitness, Inc.)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, ~~fees or reimbursement of LC Disbursements~~fees, or of amounts payable under Section ~~2.15~~2.12, ~~2.16~~ 2.13 or ~~2.17~~2.14, or otherwise) ~~prior to 1:30 p.m.,~~ not later than 2:00 p.m. (New York City time, ) on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ or via wire transfer of immediately available funds to account number 498 173 8296 maintained by Administrative Agent with Citibank N.A. (ABA No. 021-000-089) in New York City (or at such other location or bank account within the ~~applicable account~~ City and State of New York as may be designated by Administrative Agent from time to ~~the Borrower by the Administrative Agent~~time), ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and~~ except that payments pursuant to Sections ~~2.15~~2.12, ~~2.16~~2.13, ~~2.17~~ 2.14 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collectiondollars. (b) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all~~ Any proceeds of Collateral received by the ~~Agents~~ Administrative Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower), or (B) a mandatory prepayment (which shall be applied in accordance with Section 2.09), or (ii) after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, shall be ~~applied,~~ applied ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the ~~Agents or any Issuing Bank~~ Administrative Agent from the Borrower (other than in connection with ~~Banking Services or Secured Hedging~~ Swap Agreement Obligations), second, ~~ratably,~~ to pay the Prepayment Premium and any other fees ~~or expense reimbursements~~ then due to the Lenders from the Borrower (other than in connection with ~~Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders~~Swap Agreement Obligations), third, to pay interest then due and payable ~~in respect of any Revolving~~ on the Loans~~, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders)~~, fourth, to pay ~~the principal of the Protective Advances, fifth, to~~ or prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, ~~to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due~~ and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhfifth, to the payment or prepayment of any other Secured Obligations. All amounts to be applied under the preceding sentence shall be applied until the applicable item is paid in full; “paid in full” shall mean the payment in cash of all amounts payable under the Loan Documents or otherwise in respect of such item (including interest and fees accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding). Notwithstanding the foregoing, amounts received from any Loan Party shall not be applied to any Excluded Swap Obligation ~~due~~ of such Loan Party. Notwithstanding anything to the ~~Agents or any Lender~~ contrary contained in this Agreement, unless so directed by the Borrower, ~~twelfth~~or unless a Default is in existence, ~~as provided for under~~ neither the ~~Intercreditor Agreement~~Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan, except (a) on the expiration date of the Interest Period applicable thereto or (b) in the event, and ~~thirteenth,~~ only to the ~~Borrower or as~~ extent, that there are no outstanding Base Rate Loans and, in any such event, the Borrower shall ~~direct~~pay the break funding payment required in accordance with Section 2.13. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. (c) If If, except as otherwise expressly provided herein, any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and ~~participations in LC Disbursements, Swingline Loans or Protective Advances and~~ accrued interest thereon than the proportion received by any other similarly situated Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by ~~the~~ all such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Loans and participations in LC Disbursements, Swingline Loans and Protective Advances~~Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the Borrower or any ~~subsidiary~~ Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the applicable Issuing Bank~~ hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders ~~or the applicable Issuing Bank, as applicable,~~ the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it ~~pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c)~~hereunder, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations ~~under such Sections~~ hereunder until all such unsatisfied obligations are fully ~~paid~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender hereunder. Application of amounts pursuant to (i) and (ii) above shall be made in any order determined by the Administrative Agent in its discretion. (f) The Administrative Agent may from time to time provide the Borrower with billing statements or invoices with respect to any of the Secured Obligations (the “Billing Statements”). The Administrative Agent is under no duty or obligation to provide Billing Statements, which, if provided, will be solely for the Borrower’s convenience. The Billing Statements may contain estimates of the amounts owed during the relevant billing period, whether of principal, interest, fees or other Secured Obligations. If the Borrower pays the full amount indicated on a Billing Statement on or before the due date indicated on such Billing Statement, the Borrower shall not be in default; provided, that acceptance by the Administrative Agent, on behalf of the Lenders, of any payment that is less than the payment due at that time shall not constitute a waiver of the Administrative Agent’s or the Lenders’ right to receive payment in full at another time.

Appears in 2 contracts

Sources: Credit Agreement (A.S.V., LLC), Credit Agreement (Manitex International, Inc.)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the Borrower~~ The Borrowers shall make each payment required to be made by it them hereunder (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to ~~1:30~~ 4:00 p.m., New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or to the ~~applicable~~ account designated ~~to the Borrower~~ by ~~the~~ Administrative Agent, ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and~~ except that payments pursuant to ~~Sections~~ Section 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall accrue and be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all~~ Any proceeds of Collateral received by the Agents (i) not constituting (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers) or (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11), or (ii) after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, shall be applied, subject to the terms of the Intercreditor Agreement, ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the Agents ~~or any Issuing Bank~~ from the ~~Borrower (other than in connection with Banking Services or Secured Hedging Obligations)~~Borrowers, second~~, ratably~~, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders)~~Borrowers, third, to pay interest then due and payable ~~in respect of any Revolving Loans, Swingline~~ on the Loans ~~and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders)~~ratably, fourth~~, to pay the principal of the Protective Advances, fifth~~, to prepay principal on the Loans ~~(other than the Protective Advances) and unreimbursed LC Disbursements,~~ ratably (~~other than principal owing~~ with amounts applied to the ~~Tranche A-1 Lenders~~Term Loans applied to installments of such Loans in inverse order of maturity), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhfifth, to the payment of any other ~~Secured~~ Obligation due to the Agents or any ~~Lender~~ Lender. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the ~~Borrower~~Borrower Representative, ~~twelfth~~or unless a Default is in existence, ~~as provided for under~~ neither the ~~Intercreditor Agreement~~Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan of a class, except (a) on the expiration date of the Interest Period applicable thereto or (b) in the event, and ~~thirteenth,~~ only to the ~~Borrower or as~~ extent, that there are no outstanding ABR Loans of the ~~Borrower~~ same class and, in any such event, the Borrowers shall ~~direct~~pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Obligations. (c) If At the election of the Administrative Agent, all payments of principal, interest, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of any Borrower maintained with the Administrative Agent. The Borrowers hereby irrevocably authorize (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.03 and (ii) the Administrative Agent to charge any deposit account of any Borrower maintained with the Administrative Agent for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents. (d) If, except as otherwise expressly provided herein, any Lender shall, by exercising any right of ~~set-~~set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and ~~participations in LC Disbursements, Swingline Loans or Protective Advances and~~ accrued interest thereon than the proportion received by any other similarly situated Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by ~~the~~ all such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Loans and participations in LC Disbursements, Swingline Loans and Protective Advances~~Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the ~~Borrower~~ Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the ~~Borrower~~ Borrowers or any ~~subsidiary~~ Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The ~~Borrower consents~~ Borrowers consent to the foregoing and ~~agrees~~agree, to the extent it they may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the ~~Borrower~~ Borrowers rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the ~~Borrower~~ Borrowers in the amount of such participation. (de) Unless the Administrative Agent shall have received notice from the Borrower Representative prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the applicable Issuing Bank~~ hereunder that the ~~Borrower~~ Borrowers will not make such payment, the Administrative Agent may assume that the ~~Borrower has~~ Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders ~~or the applicable Issuing Bank, as applicable,~~ the amount due. In such event, if the ~~Borrower has~~ Borrowers have not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (ef) If any Lender shall fail to make any payment required to be made by it ~~pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c)~~hereunder, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations ~~under such Sections~~ hereunder until all such unsatisfied obligations are fully ~~paid~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender hereunder; application of amounts pursuant to clauses (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent in its discretion.

Appears in 2 contracts

Sources: Credit Agreement (Chefs' Warehouse, Inc.), Credit Agreement (Chefs' Warehouse, Inc.)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, or otherwise) prior to ~~1:30~~ 2:00 p.m., ~~New York City~~ Chicago time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the ~~Administrative Agent~~Lender, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the ~~Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent~~Lender at its offices at 1▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15~~▇▇▇▇▇▇▇, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof▇▇▇▇▇▇▇▇ ▇▇▇▇▇. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such paymentdollars. At all times that full cash dominion is in effect pursuant to Section ~~2.21(d)~~7.3 of the Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks ~~and cash or other~~ (in addition to immediately available funds applied pursuant to Section 2.09(b)) from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the ~~day of~~ Business Day after receipt, subject to actual collection. (b) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all~~ Any proceeds of Collateral received by the ~~Agents~~ Lender (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower), (B) a mandatory prepayment (which shall be applied in accordance with Section 2.10) or (C) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.09(b)) or (ii) after an Event of Default has occurred and is continuing and ~~all or any portion of~~ the ~~Loans~~ Lender so elects such funds shall ~~have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of the Required Lenders~~ be ~~applied,~~ applied ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the ~~Agents or any Issuing Bank~~ Lender from the ~~Borrower (other than in connection with Banking Services or Secured Hedging Obligations)~~Borrower, second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders), third, to pay interest due ~~and payable~~ in respect of ~~any Revolving Loans, Swingline Loans and any~~ the Protective Advances, ~~ratably (other than interest owing to the Tranche A-1 Lenders), fourth~~third, to pay the principal of the Protective Advances, fourth, to pay interest then due and payable on the Loans (other than the Protective Advances), fifth, to prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, ~~ratably (other than principal owing to the Tranche A-1 Lenders),~~ sixth, to pay an amount to the ~~Administrative Agent~~ Lender equal to ~~101.5%~~ one hundred five percent (105%) of the aggregate undrawn face amount of all outstanding Letters of Credit and the aggregate amount of any unpaid LC ~~Exposure on such date~~Disbursements, to be held ~~in the LC Collateral Account~~ as cash collateral for such Obligations, seventh, ~~ratably,~~ to ~~pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect~~ payment of ~~any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay~~ any amounts owing with respect to Banking Services ~~to the extent they constitute Secured Obligations~~ and ~~Secured Hedging~~ Swap Obligations, ~~ratably, eleventh~~eighth, to the payment of any other Secured Obligation due to the ~~Agents or any~~ Lender by the Borrower, ~~twelfth~~and ninth, ~~as provided~~ any remainder shall be for ~~under~~ the ~~Intercreditor~~ account of, and paid to, the Loan Party lawfully entitled thereto. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower, or unless a Default is in existence, the Lender shall not apply any payment which it receives to any Eurodollar Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or (b) in the event, and ~~thirteenth,~~ only to the ~~Borrower or as~~ extent, that there are no outstanding ABR Loans of the same Class and, in any such event, the Borrower shall ~~direct~~pay the break funding payment required in accordance with Section 2.15. The Lender shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. (c) ~~If any Lender shall~~At the election of the Lender, ~~by exercising any right~~ all payments of ~~set-off or counterclaim or otherwise~~principal, ~~obtain payment in respect of any principal of or interest on any of its Loans or participations in~~ interest, LC Disbursements, ~~Swingline Loans~~ fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 8.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower pursuant to Section 2.03 or ~~Protective Advances resulting~~ a deemed request as provided in ~~such Lender receiving payment of a greater proportion~~ this Section or may be deducted from any deposit account of the aggregate amount of its Loans and participations in LC Disbursements, Swingline Loans or Protective Advances and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements, Swingline Loans and Protective Advances of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance Borrower maintained with the ~~aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements, Swingline Loans and Protective Advances; provided that~~ Lender. The Borrower hereby irrevocably authorizes (i) ~~if any such participations are purchased~~ the Lender to make a Borrowing for the purpose of paying each payment of principal, interest and ~~all~~ fees as it becomes due hereunder or any ~~portion of~~ other amount due under the ~~payment giving rise thereto~~ Loan Documents and agrees that all such amounts charged shall constitute Loans (but such a Borrowing may only constitute a Protective Advance if it is ~~recovered~~to reimburse costs, fees and expenses as described in Section 8.03) and that all such ~~participations~~ Borrowings shall be ~~rescinded and the purchase price restored~~ deemed to ~~the extent of such recovery~~have been requested pursuant to Sections 2.03 or 2.04, ~~without interest,~~ as applicable and (ii) the ~~provisions of this paragraph shall not be construed~~ Lender to ~~apply to~~ charge any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements, Swingline Loans or Protective Advances to any assignee or participant, other than to the Borrower or any subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor deposit account of the Borrower in maintained with the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as applicable, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank with interest thereon,~~ for each ~~day from~~ payment of principal, interest and ~~including~~ fees as it becomes due hereunder or any other amount due under the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensationLoan Documents. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Appears in 2 contracts

Sources: Credit Agreement (Material Sciences Corp), Credit Agreement (Material Sciences Corp)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ The Borrower shall make each payment required to be made by it them hereunder (whether of principal, interest, fees ~~or reimbursement of LC Disbursements,~~ or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to ~~1:30~~ 1:00 p.m., New York City time, on the date when due, in immediately available funds, without ~~set-off~~ setoff or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to at its offices at the ~~applicable account designated to the Borrower by~~ address of the Administrative ~~Agent~~Agent as set forth on Schedule 9.01, ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and~~ except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. ~~If any payment hereunder shall be due on a day that is not a Business Day~~Except as otherwise specified herein, ~~the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All~~ all payments hereunder on Loans and other obligations shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) ~~Subject~~ After the exercise of remedies provided for in ~~all respects~~ Section 7.01 (or after the Loans have automatically become immediately due and payable as set forth in the proviso to Section 7.01), any amounts received on account of the Obligations shall, subject to the provisions of ~~the Intercreditor Agreement~~Section 2.20, ~~all proceeds of Collateral received~~ be applied by the ~~Agents after an Event of Default has occurred and is continuing and all or any portion of~~ Administrative Agent in the ~~Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of the Required Lenders be applied,~~ following order: first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the ~~Agents or any Issuing Bank~~ Administrative Agent from the ~~Borrower (other than in connection with Banking Services or Secured Hedging Obligations)~~Borrower, second~~, ratably~~, to pay any ~~fees~~ fees, indemnities or expense reimbursements then due to the Lenders from the ~~Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders)~~Borrower, third, to pay any remaining fees, any Prepayment Premium, and interest then due and payable ~~in respect of any Revolving Loans, Swingline~~ on the Loans ~~and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders)~~ratably, fourth~~, to pay the principal of the Protective Advances, fifth~~, to prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventhLoans, ratably, ~~to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due~~ and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhfifth, to the ~~payment of any other Secured Obligation due to the Agents or any Lender by the~~ Borrower~~, twelfth, as provided for under the Intercreditor Agreement, and thirteenth, to the Borrower or as the Borrower shall direct~~. (c) If [Reserved]. (d) If, except as otherwise expressly provided herein, any Lender shall, by exercising any right of ~~set-off~~ setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and ~~participations in LC Disbursements, Swingline Loans or Protective Advances and~~ accrued interest thereon than the proportion received by any other similarly situated Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by ~~the~~ all such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Loans and participations in LC Disbursements, Swingline Loans and Protective Advances~~Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the Borrower or any ~~subsidiary or Affiliate~~ Subsidiary thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (de) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the applicable Issuing Bank~~ hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders ~~or the applicable Issuing Bank, as applicable,~~ the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (ef) If any Lender shall fail to make any payment required to be made by it ~~pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c)~~hereunder, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such ~~Lender~~▇▇▇▇▇▇’s obligations ~~under such Sections~~ hereunder until all such unsatisfied obligations are fully ~~paid~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender hereunder. Application of amounts pursuant to (i) and (ii) above shall be made in any order determined by the Administrative Agent in its discretion. (g) The Administrative Agent may from time to time provide the Borrower with account statements or invoices with respect to any of the Obligations (the “Statements”). The Administrative Agent is under no duty or obligation to provide Statements, which, if provided, will be solely for the Borrower’s convenience. Statements may contain estimates of the amounts owed during the relevant billing period, whether of principal, interest, fees or other Obligations. If the Borrower pays the full amount indicated on a Statement on or before the due date indicated on such Statement, the Borrower shall not be in default of payment with respect to the billing period indicated on such Statements. Notwithstanding the foregoing, acceptance by the Administrative Agent, on behalf of the Lenders, of any payment that is less than the total amount actually due at that time (including but not limited to any past due amounts) shall not constitute a waiver by the Administrative Agent or any Lender of their right to receive payment of the unpaid amount in full at another time.

Appears in 1 contract

Sources: Credit Agreement (Lucid Group, Inc.)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.13, 2.14 or 2.15~~, 2.16 or 2.17~~, or otherwise) prior to 1:30 p.m., New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except ~~payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except~~ that payments pursuant to Sections ~~2.15~~2.13, ~~2.16~~2.14, ~~2.17~~ 2.15 and 9.03 ~~shall~~ may at the Borrower’s election be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it it, except as otherwise provided, for the account of any other Person to the appropriate recipient promptly following receipt thereof. If Unless otherwise specified, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents after an Event of Default has occurred and is continuing and all or any portion of the Loans shall have been accelerated hereunder pursuant to ~~Section 7.01~~Article VII, shall upon election by the Agents or at the direction of the Required Lenders be applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due to the Agents ~~or any Issuing Bank~~ from the Borrower (other than in connection with ~~Banking Services or Secured~~ Hedging Obligations), second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with ~~Banking Services or Secured~~ Hedging ~~Obligations and other than fees owing to the Tranche A-1 Lenders~~Obligations), third, to pay interest due and payable in respect of ~~any Revolving~~ the Loans, ~~Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders)~~ratably, fourth~~, to pay the principal of the Protective Advances, fifth~~, to prepay principal on the Loans ~~(other than the Protective Advances)~~ and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to ~~Banking Services to the extent they constitute Secured Obligations and Secured~~ Hedging Obligations, ratably, ~~eleventh~~fifth, to the payment of any other Secured Obligation due to the Agents or any Lender (or any Affiliate thereof) by the Borrower, ~~twelfth~~sixth, as provided for under the Intercreditor Agreement, and ~~thirteenth~~seventh, to the Borrower or as the Borrower shall direct. (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans ~~and participations in LC Disbursements, Swingline Loans or Protective Advances~~ and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Loans and participations in LC Disbursements, Swingline Loans and Protective Advances~~Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the Borrower or any subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the applicable Issuing Bank hereunder~~ that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders ~~or the applicable Issuing Bank, as applicable,~~ the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections ~~2.04(b~~2.03(a), ~~2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c~~2.16(c) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Petco Holdings Inc)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, ~~fees or reimbursement of LC Disbursements~~fees, or of amounts payable under Section ~~2.15~~2.16, ~~2.16~~ 2.17 or ~~2.17~~2.18, or otherwise) prior to ~~1:30~~ 3:00 p.m., New York City time, on the date when due, in immediately available funds, without ~~set-~~set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent ~~to the applicable account designated to the Borrower by the Administrative Agent~~at its offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein~~ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and except that payments pursuant to Sections ~~2.15,~~ 2.16, ~~2.17~~ 2.17, 2.18 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all~~ Any proceeds of Collateral received by the ~~Agents~~ Administrative Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower) or (B) a mandatory prepayment (which shall be applied in accordance with Section 2.12) or (ii) after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, such proceeds shall be applied, subject to the terms of the ABL/Term Loan Intercreditor Agreement, ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the ~~Agents or any Issuing Bank~~ Administrative Agent from the ~~Borrower (other than in connection with Banking Services or Secured Hedging Obligations)~~Borrower, second~~, ratably~~, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders)~~Borrower, third, to pay interest then due and payable in respect of any Revolving Loans, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders), fourth, to pay the principal of the Protective Advances, fifth, to prepay principal on the Loans ~~(other than the Protective Advances)~~ ratably and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhfourth, to the payment of any other Secured Obligation due to the ~~Agents~~ Administrative Agent or any Lender by the Borrower~~, twelfth, as provided for under~~ . Notwithstanding anything to the ~~Intercreditor~~ contrary contained in this Agreement, unless so directed by the Borrower, or unless a Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or (b) in the event, and ~~thirteenth,~~ only to the ~~Borrower or as~~ extent, that there are no outstanding ABR Loans of the same Class and, in any such event, the Borrower shall ~~direct~~pay the break funding payment required in accordance with Section 2.17. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. (c) If any Lender shall, by exercising any right of ~~set-~~set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and ~~participations in LC Disbursements, Swingline Loans or Protective Advances and~~ accrued interest thereon than the proportion received by any other ~~Lender~~Lender of the same Class, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of ~~other Lenders at~~ such ~~time outstanding~~ Class to the extent necessary so that the benefit of all such payments shall be shared by ~~the~~ such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~of such Class; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the Borrower or any ~~subsidiary~~ Subsidiary or Affiliate thereof (excluding assignments to or purchases by a Purchasing Borrower Party in accordance with Section 9.04(e)) (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the applicable Issuing Bank~~ hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lenders ~~or the applicable Issuing Bank, as applicable,~~ the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to ~~Sections 2.04(b~~Section 2.08(b), ~~2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c~~2.19(e) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully ~~paid~~paid and/or (ii) hold any such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion. (f) The Administrative Agent may from time to time provide the Borrower with billing statements or invoices with respect to any of the Secured Obligations (the “Billing Statements”). The Administrative Agent is under no duty or obligation to provide Billing Statements, which, if provided, will be solely for the Borrower’s convenience. The Billing Statements may contain estimates of the amounts owed during the relevant billing period, whether of principal, interest, fees or other Secured Obligations. If the Borrower pays the full amount indicated on a Billing Statement on or before the due date indicated on such Billing Statement, the Borrower shall not be in default; provided that, acceptance by the Administrative Agent, on behalf of the Lenders, of any payment that is less than the payment due at that time shall not constitute a waiver of the Administrative Agent’s or the Lenders’ right to receive payment in full at another time.

Appears in 1 contract

Sources: Loan Agreement (Lifetime Brands, Inc)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to ~~1:30 p.m.~~noon, ~~New York City~~ Chicago time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the ~~Administrative~~ applicable Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent ~~to the applicable account designated to the Borrower by the Administrative Agent~~at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments (i) of interest in respect of Canadian Revolving Loans and payments of Letter of Credit participation fees in respect of Canadian Letters of Credit, which shall be made to the Canadian Agent, (ii) to be made directly to ~~the applicable~~ an Issuing Bank or ~~the~~ a Swingline Lender as expressly provided herein and ~~except~~ (iii) that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The ~~Administrative~~ applicable Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension~~. All payments hereunder~~ . (b) Any proceeds of Collateral of the Domestic Loan Parties received by either Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be ~~made in Dollars. Any payment required to be made~~ applied as specified by the ~~Administrative Agent hereunder~~ Borrower Representative), (B) a mandatory prepayment (which shall be ~~deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment~~ applied in accordance with ~~the regulations~~ Section 2.11) or ~~operating procedures of the clearing or settlement system used by the Administrative Agent~~ (C) amounts to ~~make such payment. At all times that~~ be applied from a Collection Account when full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral (which shall be applied in ~~whole~~ accordance with Section 2.10) or ~~in part against the Obligations, on the day of receipt, subject to actual collection.~~ (bii) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents~~ after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, such funds shall be ~~applied,~~ applied ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the Agents ~~or any~~ and the Issuing ~~Bank~~ Banks from the ~~Borrower~~ Borrowers (other than in connection with Banking Services Obligations or ~~Secured Hedging~~ Swap Obligations), second~~, ratably~~, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower~~ Borrowers (other than in connection with Banking Services or ~~Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders~~Swap Obligations), third, to pay interest due ~~and payable~~ in respect of ~~any Revolving Loans, Swingline Loans~~ Overadvances and ~~any~~ Protective Advances~~, ratably (other than interest owing to the Tranche A-1 Lenders)~~, fourth, to pay the principal of ~~the~~ Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably, sixth, to prepay principal on the Loans (other than the Overadvances, Protective ~~Advances~~Advances and Ex-Im Revolving Loans) and unreimbursed LC ~~Disbursements, ratably~~ Disbursements (other than ~~principal owing~~ unreimbursed Ex-Im LC Disbursements) ratably (with amounts applied to the ~~Tranche A-1 Lenders~~Term Loans applied to installments of the Term Loans in inverse order of maturity), ~~sixth~~seventh, to pay ~~an amount~~ ratably amounts to the ~~Administrative Agent~~ Agents equal to ~~101.5~~105% of the aggregate undrawn face amount of all outstanding Letters of Credit (other than Ex-Im Letters of Credit) and the aggregate amount of any unpaid LC ~~Exposure on such date~~Disbursements (other than unpaid Ex-Im LC Disbursements), to be held ~~in the LC Collateral Account~~ as cash collateral for such Obligations, ~~seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations),~~ eighth, to ~~pay interest due and payable in respect~~ payment of ~~any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay~~ any amounts owing with respect to Banking Services ~~to the extent they constitute Secured~~ Obligations and ~~Secured Hedging~~ Swap Obligations, ~~ratably, eleventh~~ninth, to the payment of any other Secured Obligation due to ~~the Agents~~ either Agent or any Lender by the ~~Borrower~~Borrowers, ~~twelfth~~tenth, ~~as provided for under~~ to prepay principal on the ~~Intercreditor Agreement~~Ex-Im Revolving Loans and unreimbursed Ex-Im LC Disbursements ratably, and ~~thirteenth~~eleventh, to pay amounts to the ~~Borrower or~~ Administrative Agent equal to 105% of the aggregate undrawn face amount of all outstanding Ex-Im Letters of Credit and the aggregate amount of any unpaid Ex-Im LC Disbursements, to be held as ~~the Borrower shall direct~~cash collateral for such obligations. (c) Any proceeds of Collateral of the Canadian Loan Parties received by either Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower Representative), (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11) or (C) amounts to be applied from the Canadian Collateral Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders so direct, such funds shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Agents and the Canadian Issuing Bank from the Canadian Borrower (other than in connection with Banking Services Obligations or Swap Obligations), second, to pay any fees or expense reimbursements then due to the Canadian Revolving Lenders from the Canadian Borrower (other than in connection with Banking Services Obligations or Swap Obligations), third, to pay interest due in respect of Canadian Overadvances and Canadian Protective Advances, fourth, to pay the principal of Canadian Overadvances and Canadian Protective Advances, fifth, to pay interest then due and payable on the Canadian Revolving Loans, sixth, to prepay principal on the Canadian Revolving Loans and unreimbursed Canadian LC Disbursements ratably, seventh, to pay an amount to the Canadian Agent equal to 105% of the aggregate undrawn face amount of all outstanding Canadian Letters of Credit and the aggregate amount of any unpaid Canadian LC Disbursements, to be held as cash collateral for such Obligations, eighth, to payment of any amounts owing by the Canadian Loan Parties in respect of Banking Services Obligations and Swap Obligations, and ninth, to the payment of any other Canadian Obligations due to either Agent or any Canadian Revolving Lender by the Canadian Borrower. In no event will any proceeds of Collateral described in this Section 2.18(c) be applied to any Domestic Obligations or Ex-Im Obligations. (d) Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower Representative, or unless an Event of Default is in existence, neither either Agent nor any Lender shall apply any payment which it receives to any CDOR Rate Loan or any Eurodollar Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or (b) in the event, and only to the extent, that with respect to CDOR Rate Loans, there are no outstanding CP Loans of the same Class, and with respect to Eurodollar Loans, there are no outstanding CBFR Loans or USBR Loans, as applicable, of the same Class and, in any such event, the applicable Borrower shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. (e) At the election of the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of any Borrower maintained with the Administrative Agent; provided, that no Borrowings of Canadian Revolving Loans, Canadian Swingline Loans, Canadian Overadvances or Canadian Protective Advances may be used to pay any of the Domestic Obligations or the Ex-Im Obligations and no amounts contained in a deposit account of the Canadian Borrower may be applied against any of the Domestic Obligations or the Ex-Im Obligations. The Company hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) the Administrative Agent to charge any deposit account of any Borrower maintained with the Administrative Agent for each payment of principal, interest and fees for which such Borrower is obligated as it becomes due hereunder or any other amount due under the Loan Documents. Each Ex-Im Borrower hereby authorizes (i) the Ex-Im Revolving Lender to make a Borrowing for the purpose of paying each payment of principal, interest and fees in respect of the Ex-Im Revolving Loans and the Ex-Im Letters of Credit as it becomes due hereunder or any other amounts due under the Loan Documents in respect of the Ex-Im Obligations and agrees that such amounts charged shall constitute Ex-Im Revolving Loans and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.03 and (ii) the Ex-Im Revolving Lender to charge any deposit account of any Ex-Im Borrower maintained with the Ex-Im Revolving Lender for each payment of principal, interest and fees for which the Ex-Im Borrowers are obligated as it becomes due hereunder or any other amount due under the Loan Documents in respect of the Ex-Im Obligations. The Canadian Borrower hereby authorizes (i) the Canadian Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees owing by it as it becomes due hereunder or any other amount due from it under the Loan Documents and agrees that all such amounts charged shall constitute Canadian Revolving Loans (including Canadian Swingline Loans and Canadian Overadvances, but such a Borrowing may only constitute a Canadian Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) each Agent to charge any deposit account of the Canadian Borrower maintained with such Agent for each payment of principal, interest and fees owing by the Canadian Borrower as it becomes due hereunder or any other amount due from it under the Loan Documents. (f) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in Ex-Im Revolving Loans and LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in Ex-Im Revolving Loans and LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and ~~participations in~~ LC ~~Disbursements, Swingline Loans and Protective Advances~~ Disbursements of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in Ex-Im Revolving Loans and LC Disbursements~~, Swingline Loans and Protective Advances~~; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by ~~the~~ any Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in~~ and LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements to any assignee or participant, other than to ~~the~~ such Borrower or any ~~subsidiary~~ Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). ~~The~~ Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against ~~the~~ such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the~~ such Borrower in the amount of such participation. (dg) Unless the Administrative Agent shall have received notice from the Borrower Representative prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or ~~the applicable~~ an Issuing Bank hereunder that the ~~Borrower~~ Borrowers will not make such payment, the Administrative Agent may assume that the ~~Borrower has~~ Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as ~~applicable~~the case may be, the amount due. In such event, if the ~~Borrower has~~ Borrowers have not in fact made such payment, then each of the Lenders or ~~the applicable~~ such Issuing Bank, as ~~applicable~~the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (eh) If any Lender shall fail to make any payment required to be made by it ~~pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c)~~hereunder, then the ~~Administrative~~ applicable Agent or the Ex-Im Revolving Lender, as applicable, may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by ~~the Administrative Agent~~ such Person for the account of such Lender to satisfy such Lender’s obligations ~~under such Sections~~ hereunder until all such unsatisfied obligations are fully ~~paid~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any such amounts to, any future funding obligations of such Lender hereunder; application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent in its discretion.

Appears in 1 contract

Sources: Credit Agreement (Park Ohio Industries Inc/Oh)

Appears in 1 contract

Sources: Credit Agreement (Par Technology Corp)

Appears in 1 contract

Sources: Second Lien Credit Agreement (RTI Surgical Holdings, Inc.)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, ~~fees~~ or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.15, ~~2.16~~ 2.16, 2.17 or ~~2.17~~9.03, or otherwise) at or prior to ~~1:30~~ the time expressly required hereunder or under any other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to at its offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such other address that the ~~applicable account designated to~~ Administrative Agent shall advise the Borrower ~~by the Administrative Agent~~in writing, ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and~~ except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled ~~thereto~~thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment ~~hereunder~~ under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business ~~Day,~~ Day and, in the case of any payment accruing ~~interest~~interest or any payment of fees, such interest ~~thereon~~ or fees, as applicable, shall be payable for the period of such extension. All payments ~~hereunder~~ under any Loan Document shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) ~~Subject~~ Prior to any repayment of any Borrowings hereunder (other than the repayment in full of all ~~respects~~ outstanding Borrowings on the scheduled date of such repayment), the Borrower shall select the Borrowing or Borrowings to be paid and shall notify the Administrative Agent by telephone (confirmed by facsimile) of such selection at the times and on the days provided in Section 2.09 and 2.11; provided, that each repayment of Borrowings shall be applied to repay any outstanding ABR Borrowings before any other Borrowings. If the Borrower fails to make a timely selection of the Borrowing or Borrowings to be repaid (in accordance with the immediately preceding sentence) or prepaid (in accordance with Section 2.09 or 2.11), such payment shall be applied, first, to pay any outstanding ABR Borrowings and, second, to other Borrowings in the order of the remaining duration of their respective Interest Periods (the Borrowing with the shortest remaining Interest Period to be repaid first). Each repayment or prepayment of a Borrowing shall be applied ratably to the ~~provisions of the Intercreditor Agreement, all proceeds of Collateral~~ Loans included in such Borrowing. (c) Any amounts received by the ~~Agents~~ Administrative Agent in accordance with this Agreement or another Loan Document (i) not constituting a specific payment of principal, interest, fees or other sum payable under the Loan Documents or (ii) after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, shall be ~~applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due~~ applied ratably to the Agents or any Issuing Bank from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders), third, to pay interest due and payable in respect of any Revolving Loans, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders), fourth, to pay the principal of the Protective Advances, fifth, to prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhfollows: first, to the payment of all costs and expenses incurred by the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement, any other ~~Secured Obligation due to the Agents~~ Loan Document or any ~~Lender~~ of the Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the ~~Borrower~~Administrative Agent hereunder or under any other Loan Document on behalf of any Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document, ~~twelfth, as provided for under the Intercreditor Agreement, and thirteenth~~second, to the payment in full of the Obligations (the amounts so applied to be distributed among the Lenders pro rata in accordance with the amounts of the Obligations owed to them on the date of any such distribution), and third, to the Loan Parties, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower or as an Event of Default has occurred and is continuing, neither the Administrative Agent nor any Lender shall apply any payment that it receives to a Eurocurrency Loan, except (x) on the expiration date of the Interest Period applicable to any such Eurocurrency Loan or (y) in the event, and only to the extent, that there are no outstanding ABR Loans and, in any such event, the Borrower shall ~~direct~~pay any break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Obligations in accordance with the terms of this Agreement. (cd) Except to the extent otherwise provided herein: (i) each Borrowing shall be made from the Lenders and the termination and reduction of the Commitments under Section 2.11 shall be applied to the respective Commitments of the Lenders ratably among the undrawn Commitments then outstanding; (ii) each Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective Commitments (in the case of the making of Loans) or their respective Loans that are to be included in such Borrowing (in the case of conversions and continuations of Loans); (iii) each payment or prepayment of principal of the Loans by the Borrower shall be made for the account of the relevant Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans made to the Borrower and held by them; and (iv) each payment of interest on the Loans by the Borrower shall be made for the accounts of the Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to them. (e) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties. (f) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and ~~participations in LC Disbursements, Swingline Loans or Protective Advances and~~ accrued interest thereon then due than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Loans and participations in LC Disbursements~~Loans; provided, ~~Swingline Loans and Protective Advances; provided~~ that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this ~~paragraph~~ clause (f) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the Borrower or any ~~subsidiary~~ Subsidiary or other Affiliate thereof (as to which the provisions of this ~~paragraph~~ clause (f) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (di) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the applicable Issuing Bank~~ hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the ~~Lenders or the applicable Issuing Bank, as applicable~~Lenders, the amount due~~. In~~ . (ii) With Respect to any payment that the Administrative Agent makes for the account of the Lenders hereunder as to which the Administrative Agent determines (which determination shall be conclusive absent manifest error) that any of the following applies (such ~~event, if~~ payment referred to as the “Rescindable Amount”) : (A) the Borrower has not in fact made such payment, ; (B) the Administrative Agent has made a payment in excess of the amount so paid by the Borrower (whether or not then owed); or (C) the Administrative agent has for any reason otherwise erroneously made such payment; then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the ~~amount~~ Rescindable Amount so distributed to such ~~Lender or Issuing Bank~~ Lender, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds ~~Effective~~ Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (eh) If any Lender shall fail to make any payment required to be made by it pursuant to ~~Sections 2.04(b), 2.05(b), 2.06(d) or (e),~~ Section 2.07(b), ~~2.18(c~~2.17(d), 2.18(g) or 9.03(c), then the Administrative Agent may, in its discretion (and notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent (or, following the payment of all amounts then due to the Administrative Agent, to the extent the Lenders shall have funded payments to the Administrative Agent in respect of other such amounts, for the benefit of the other Lenders) to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.

Appears in 1 contract

Sources: Term Loan Agreement (Tyson Foods, Inc.)

Appears in 1 contract

Sources: Credit Agreement (YRC Worldwide Inc.)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under ~~Section~~ Sections 2.13, 2.14 or 2.15~~, 2.16 or 2.17~~, or otherwise) prior to 1:30 p.m., New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except ~~payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except~~ that payments pursuant to Sections ~~2.15~~2.13, ~~2.16~~2.14, ~~2.17~~ 2.15 and 9.03 ~~shall~~ may at the Borrower’s election be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it it, except as otherwise provided, for the account of any other Person to the appropriate recipient promptly following receipt thereof. If Unless otherwise specified, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents after an Event of Default has occurred and is continuing and all or any portion of the Loans shall have been accelerated hereunder pursuant to ~~Section 7.01~~Article 7, shall upon election by the Agents or at the direction of the Required Lenders be applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due to the ~~Agents or any Issuing Bank from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations)~~Agents, second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders)~~Borrower, third, to pay interest due and payable in respect of ~~any Revolving Loans, Swingline~~ the Loans and any ~~Protective Advances~~other Secured Obligations, ~~ratably (other than interest owing to the Tranche A-1 Lenders)~~ratably, fourth, to ~~pay~~ (i) payment of that portion of the Obligations constituting unpaid principal of the ~~Protective Advances~~Loans and (ii) payment of breakage, ~~fifth, to prepay principal on the Loans (~~termination and other ~~than the Protective Advances) and unreimbursed LC Disbursements, ratably (other than principal~~ amounts owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any ~~Revolving Loans owing~~ Secured Hedging Obligations between any Loan Party, on the one hand, and an Agent or any Lender or any of their Affiliates, on the other hand, to the ~~Tranche A-1 Lenders~~extent such Secured Hedging Obligations are permitted hereunder, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhfifth, to the payment of any other Secured Obligation due to the Agents or any Lender (or any Affiliate thereof) by the Borrower, ~~twelfth~~sixth, as provided for under the Intercreditor Agreement, and ~~thirteenth~~seventh, to the Borrower or as the Borrower shall direct. (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans ~~and participations in LC Disbursements, Swingline Loans or Protective Advances~~ and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Loans and participations in LC Disbursements, Swingline Loans and Protective Advances~~Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the Borrower or any subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the applicable Issuing Bank hereunder~~ that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders ~~or the applicable Issuing Bank, as applicable,~~ the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections ~~2.04(b~~2.03(a), ~~2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c~~2.16(c) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Amscan Holdings Inc)

Appears in 1 contract

Sources: Term Credit Agreement (Designer Brands Inc.)

Appears in 1 contract

Sources: Second Lien Credit Agreement (RTI Surgical Holdings, Inc.)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder and under any other Loan Document (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, or otherwise) prior to ~~1:30 p.m.~~12:00 (noon), New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the ~~Administrative~~ Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments (other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing Bank, and (ii) principal of and interest on Swingline Loans, which shall be paid directly to the Swingline Lender except as otherwise provided in Section 2.22(f)) shall be made to the ~~Administrative~~ Agent to the applicable account designated to the Borrower by the ~~Administrative~~ Agent, ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and~~ except that payments pursuant to Sections 2.14, 2.15, ~~2.16, 2.17~~ 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The ~~Administrative~~ Agent shall distribute any such payments received by it it, except as otherwise provided, for the account of any other Person to the appropriate recipient promptly following receipt thereof. If Except as otherwise expressly provided herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the ~~Administrative~~ Agent hereunder shall be deemed to have been made by the time required if the ~~Administrative~~ Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the ~~Administrative~~ Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents after an Event of Default has occurred and is continuing and all or any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of the Required Lenders be applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due to the Agents or any Issuing Bank from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders), third, to pay interest due and payable in respect of any Revolving Loans, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders), fourth, to pay the principal of the Protective Advances, fifth, to prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventh, to the payment of any other Secured Obligation due to the Agents or any Lender by the Borrower, twelfth, as provided for under the Intercreditor Agreement, and thirteenth, to the Borrower or as the Borrower shall direct[Intentionally Omitted.] (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or ~~participations in LC Disbursements, Swingline Loans or Protective Advances~~ any of its L/C Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and ~~participations in LC Disbursements, Swingline Loans or Protective Advances and~~ accrued interest thereon and L/C Disbursements than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and ~~participations in LC Disbursements, Swingline Loans and Protective Advances~~ L/C Disbursements of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and ~~participations in LC~~ L/C Disbursements~~, Swingline Loans and Protective Advances~~; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or ~~participations in LC Disbursements, Swingline Loans or Protective Advances~~ L/C Disbursements to any assignee or participant, other than to Holdings, the Borrower or any subsidiary ~~or Affiliate~~ thereof (as to which the provisions of this paragraph shall apply, except as otherwise contemplated by Section 2.09(e)). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the ~~Administrative~~ Agent shall have received notice from the Borrower prior to the date on which any payment is due to the ~~Administrative~~ Agent for the account of the Lenders ~~or the applicable Issuing Bank hereunder~~ that the Borrower will not make such payment, the ~~Administrative~~ Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders ~~or the applicable Issuing Bank, as applicable,~~ the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the ~~Administrative~~ Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the ~~Administrative~~ Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the ~~Administrative~~ Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections ~~2.04(b~~2.04(a), ~~2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c~~2.17(c) or 9.03(c), then the ~~Administrative~~ Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the ~~Administrative~~ Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid. (f) Except as otherwise provided herein, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, each payment of the Commitment Fees or the L/C Participation Fees, each reduction of the Term Loan Commitments or the Revolving Credit Commitments and each conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated pro rata among the Lenders in accordance with their respective applicable Commitments (or, if such Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Loans or participations in L/C Disbursements, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount

Appears in 1 contract

Sources: Credit Agreement (TransDigm Group INC)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, ~~fees~~ or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.15, ~~2.16~~ 2.16, 2.17 or ~~2.17~~9.03, or otherwise) at or prior to ~~1:30~~ the time expressly required hereunder or under any other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to at its offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such other address that the ~~applicable account designated to~~ Administrative Agent shall advise the Borrower ~~by the Administrative Agent~~in writing, ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and~~ except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled ~~thereto~~thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment ~~hereunder~~ under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business ~~Day,~~ Day and, in the case of any payment accruing ~~interest~~interest or any payment of fees, such interest ~~thereon~~ or fees, as applicable, shall be payable for the period of such extension. All payments ~~hereunder~~ under any Loan Document shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collectiondollars. (b) ~~Subject~~ Prior to any repayment of any Borrowings hereunder (other than the repayment in full of all ~~respects~~ outstanding Borrowings on the scheduled date of such repayment), the Borrower shall select the Borrowing or Borrowings to be paid and shall notify the Administrative Agent by telephone (confirmed by facsimile) of such selection at the times and on the days provided in Section 2.09 and 2.11; provided, that each repayment of Borrowings shall be applied to repay any outstanding ABR Borrowings before any other Borrowings. If the Borrower fails to make a timely selection of the Borrowing or Borrowings to be repaid (in accordance with the immediately preceding sentence) or prepaid (in accordance with Section 2.09 or 2.11), such payment shall be applied, first, to pay any outstanding ABR Borrowings and, second, to other Borrowings in the order of the remaining duration of their respective Interest Periods (the Borrowing with the shortest remaining Interest Period to be repaid first). Each repayment or prepayment of a Borrowing shall be applied ratably to the ~~provisions of the Intercreditor Agreement, all proceeds of Collateral~~ Loans included in such Borrowing. (c) Any amounts received by the ~~Agents~~ Administrative Agent in accordance with this Agreement or another Loan Document (i) not constituting (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents, or (B) a mandatory prepayment under Section 2.11 (which shall be applied in accordance with Section 2.11), or (ii) after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, shall be ~~applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due~~ applied ratably to the Agents or any Issuing Bank from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders), third, to pay interest due and payable in respect of any Revolving Loans, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders), fourth, to pay the principal of the Protective Advances, fifth, to prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhfollows: first, to the payment of all costs and expenses incurred by the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement, any other ~~Secured Obligation due to the Agents~~ Loan Document or any ~~Lender~~ of the Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the ~~Borrower~~Administrative Agent hereunder or under any other Loan Document on behalf of any Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document, ~~twelfth, as provided for under the Intercreditor Agreement, and thirteenth~~second, to the payment in full of the Obligations (the amounts so applied to be distributed among the Lenders pro rata in accordance with the amounts of the Obligations owed to them on the date of any such distribution), and third, to the Loan Parties, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower or as an Event of Default has occurred and is continuing, neither the Administrative Agent nor any Lender shall apply any payment that it receives to a Eurocurrency Loan, except (x) on the expiration date of the Interest Period applicable to any such Eurocurrency Loan or (y) in the event, and only to the extent, that there are no outstanding ABR Loans and, in any such event, the Borrower shall ~~direct~~pay any break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Obligations in accordance with the terms of this Agreement. (cd) Except to the extent otherwise provided herein (including Section 2.21): (i) each Borrowing shall be made from the Lenders and the termination and reduction of the Commitments under Section 2.11 shall be applied to the respective Commitments of the Lenders ratably among the undrawn Commitments then outstanding; (ii) each Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective Commitments (in the case of the making of Loans) or their respective Loans that are to be included in such Borrowing (in the case of conversions and continuations of Loans); (iii) each payment or prepayment of principal of the Loans by the Borrower shall be made for the account of the relevant Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans made to the Borrower and held by them; and (iv) each payment of interest on the Loans by the Borrower shall be made for the accounts of the Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to them. (e) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties. (f) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and ~~participations in LC Disbursements, Swingline Loans or Protective Advances and~~ accrued interest thereon then due than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Loans and participations in LC Disbursements~~Loans; provided, ~~Swingline Loans and Protective Advances; provided~~ that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this ~~paragraph~~ clause (f) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the Borrower or any ~~subsidiary~~ Subsidiary or other Affiliate thereof (as to which the provisions of this ~~paragraph~~ clause (f) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (dg) Unless the Administrative Agent shall have received notice from the ~~Borrower~~ Borrower, prior to the date on which any payment is due to the Administrative Agent for the account of ~~the Lenders or the applicable Issuing Bank hereunder~~ a Lender hereunder, that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to ~~the Lenders or the applicable Issuing Bank, as applicable,~~ such Lender the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Appears in 1 contract

Sources: 364 Day Term Loan Agreement (Tyson Foods Inc)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the Borrower~~ The Borrowers shall make each payment required to be made by it them hereunder (whether of principal, ~~interest,~~ interest or fees ~~or reimbursement of LC Disbursements,~~ or of amounts payable under ~~Section 2.15~~Sections 2.16, ~~2.16~~ 2.17, 2.18, or ~~2.17~~9.04, or otherwise) prior to ~~1:30 p.m.~~12:00 noon, New York City time, on the date when due, in immediately available funds, without ~~set-~~set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent via wire transfer to account number ▇▇▇ ▇▇▇ ▇▇▇▇ maintained by Administrative Agent with Citibank N.A. (ABA No. 021-000-089) in New York City (or at such other location or bank account within the ~~applicable account~~ City and State of New York as may be designated by Administrative Agent from time to ~~the Borrower by the Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and~~ time) except that payments pursuant to Sections ~~2.15,~~ 2.16, ~~2.17~~ 2.17, 2.18 and ~~9.03~~ 9.04 shall be made directly to the Persons entitled ~~thereto~~thereto and payments pursuant to the other Loan Documents shall be made to the Persons specified therein. The Administrative Agent and the Collateral Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks Checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of ~~receipt~~receipt by the Administrative Agent, subject to actual collection. (b) Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents after an Event of Default has occurred and is continuing and all or any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of the Required Lenders be applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due to the Agents or any Issuing Bank from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders), third, to pay interest due and payable in respect of any Revolving Loans, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders), fourth, to pay the principal of the Protective Advances, fifth, to prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventh, to the payment of any other Secured Obligation due to the Agents or any Lender by the Borrower, twelfth, as provided for under the Intercreditor Agreement, and thirteenth, to the Borrower or as the Borrower shall direct. (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements, Swingline Loans or Protective Advances resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements, Swingline Loans or Protective Advances and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements, Swingline Loans and Protective Advances of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements, Swingline Loans and Protective Advances; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements, Swingline Loans or Protective Advances to any assignee or participant, other than to the Borrower or any subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as applicable, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Joe's Jeans Inc.)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ The Borrower shall make each payment required to be made by it them hereunder (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under ~~Section 2.15~~Sections 2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, or otherwise) ~~prior to 1:30 p.m., New York City time, on the date when due,~~ in immediately available funds, without set-off (except as otherwise provided in Section 2.16) or ~~counterclaim~~counterclaim and, unless otherwise specified, prior to 2:00 p.m. on the date when due. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except ~~payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except~~ that payments pursuant to Sections ~~2.15~~2.14, ~~2.16, 2.17~~ 2.15 or 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If Except as otherwise provided herein, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment ~~hereunder~~ of interest on the Loans of a given Class and each conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type (and of the same Class) shall be ~~due on a day~~ allocated pro rata among the Lenders in accordance with their respective Applicable Percentages. Each Lender agrees that ~~is not a Business Day~~in computing such ▇▇▇▇▇▇’s portion of any Borrowing to be made hereunder, the ~~date for payment shall be extended~~ Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the next ~~succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension~~higher or lower whole Dollar amount. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) Subject in all respects to the provisions of the Intercreditor Agreement or other applicable Acceptable Intercreditor Agreement, all proceeds of Collateral received by the ~~Agents~~ Administrative Agent after an Event of Default has occurred and is continuing and all or any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, ~~shall~~ shall, upon election by the ~~Agents~~ Administrative Agent or at the direction of the Required ~~Lenders~~ Lenders, be applied, first, ~~to, ratably,~~ to pay any fees, ~~indemnities,~~ indemnities or expense reimbursements then due to the ~~Agents or any Issuing Bank~~ Administrative Agent from the Borrower ~~(other than in connection with Banking Services or Secured Hedging~~ constituting Obligations), second, ~~ratably~~on a pro rata basis, to pay any ~~fees~~ fees, indemnities or expense reimbursements then due to the Lenders from the Borrower ~~(other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders)~~constituting Obligations, third, to pay interest due and payable in respect of any ~~Revolving~~ Loans, ~~Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders)~~on a pro rata basis, fourth~~, to pay the principal of the Protective Advances, fifth~~, to prepay principal on the Loans ~~(other than~~ on a pro rata basis among the ~~Protective Advances) and unreimbursed LC Disbursements~~Secured Parties, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhfifth, to the payment of any other Secured Obligation (other than contingent indemnification obligations for which no claim has yet been made) due to the ~~Agents~~ Administrative Agent or any Lender ~~by the Borrower~~on a pro rata basis, ~~twelfth~~sixth, as provided for under the Intercreditor ~~Agreement,~~ Agreement or other applicable Acceptable Intercreditor Agreement and ~~thirteenth~~seventh, to the Borrower or as the Borrower shall direct. (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ of any Class resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans ~~and participations in LC Disbursements, Swingline Loans or Protective Advances~~ of such Class and accrued interest thereon than the proportion received by any other ~~Lender~~Lender with Loans of such Class, then the Lender receiving such greater proportion shall purchase (for ~~cash~~ Cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of other Lenders of such Class at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~of such Class; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements, Swingline Loans or Protective Advances to any assignee or participant, other than to the Borrower or any subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as applicable, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.or

Appears in 1 contract

Sources: Second Lien Credit Agreement

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, ~~fees or reimbursement of LC Disbursements~~fees, or of amounts payable under Section ~~2.15~~2.16, ~~2.16~~ 2.17 or ~~2.17~~2.18, or otherwise) prior to ~~1:30~~ 3:00 p.m., New York City time, on the date when due, in immediately available funds, without ~~set-~~set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent ~~to the applicable account designated to the Borrower by the Administrative Agent~~at its offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein~~ ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and except that payments pursuant to Sections ~~2.15,~~ 2.16, ~~2.17~~ 2.17, 2.18 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all~~ Any proceeds of Collateral received by the ~~Agents~~ Administrative Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower) or (B) a mandatory prepayment (which shall be applied in accordance with Section 2.12) or (ii) after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, such proceeds shall be applied, subject to the terms of the ABL/Term Loan Intercreditor Agreement, ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the ~~Agents or any Issuing Bank~~ Administrative Agent from the ~~Borrower (other than in connection with Banking Services or Secured Hedging Obligations)~~Borrower, second~~, ratably~~, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders)~~Borrower, third, to pay interest then due and payable in respect of any Revolving Loans, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders), fourth, to pay the principal of the Protective Advances, fifth, to prepay principal on the Loans ~~(other than the Protective Advances)~~ ratably and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhfourth, to the payment of any other Secured Obligation due to the ~~Agents~~ Administrative Agent or any Lender by the Borrower~~, twelfth, as provided for under~~ . Notwithstanding anything to the ~~Intercreditor~~ contrary contained in this Agreement, unless so directed by the Borrower, or unless a Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any EurodollarTerm Benchmark Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such EurodollarTerm Benchmark Loan or (b) in the event, and ~~thirteenth,~~ only to the ~~Borrower or as~~ extent, that there are no outstanding ABR Loans of the same Class and, in any such event, the Borrower shall ~~direct~~pay the break funding payment required in accordance with Section 2.17. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. (c) If any Lender shall, by exercising any right of ~~set-~~set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and ~~participations in LC Disbursements, Swingline Loans or Protective Advances and~~ accrued interest thereon than the proportion received by any other ~~Lender~~Lender of the same Class, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of ~~other Lenders at~~ such ~~time outstanding~~ Class to the extent necessary so that the benefit of all such payments shall be shared by ~~the~~ such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~of such Class; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the 64 assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the Borrower or any ~~subsidiary~~ Subsidiary or Affiliate thereof (excluding assignments to or purchases by a Purchasing Borrower Party in accordance with Section 9.04(e)) (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the applicable Issuing Bank~~ hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lenders ~~or the applicable Issuing Bank, as applicable,~~ the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to ~~Sections 2.04(b~~Section 2.08(b), ~~2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c~~2.19(e) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender and for the benefit of the Administrative Agent to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully ~~paid~~paid and/or (ii) hold any such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion. (f) The Administrative Agent may from time to time provide the Borrower with billing statements or invoices with respect to any of the Secured Obligations (the “Billing Statements”). The Administrative Agent is under no duty or obligation to provide Billing Statements, which, if provided, will be solely for the Borrower’s convenience. The Billing Statements may contain estimates of the amounts owed during the relevant billing period, whether of principal, interest, fees or other Secured Obligations. If the Borrower pays the full amount indicated on a Billing Statement on or before the due date indicated on such Billing Statement, the Borrower shall not be in default; provided that, acceptance by the Administrative Agent, on behalf of the Lenders, of any payment that is less than the payment due at that time shall not constitute a waiver of the Administrative Agent’s or the Lenders’ right to receive payment in full at another time.

Appears in 1 contract

Sources: Loan Agreement (Lifetime Brands, Inc)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to ~~1:30 p.m.~~noon, ~~New York City~~ Chicago time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the ~~Administrative~~ applicable Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent ~~to the applicable account designated to the Borrower by the Administrative Agent~~at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments (i) of interest in respect of Canadian Revolving Loans and payments of Letter of Credit participation fees in respect of Canadian Letters of Credit, which shall be made to the Canadian Agent, (ii) to be made directly to ~~the applicable~~ an Issuing Bank or ~~the~~ a Swingline Lender as expressly provided herein and ~~except~~ (iii) that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The ~~Administrative~~ applicable Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension~~. All payments hereunder~~ . (b) Any proceeds of Collateral of the Domestic Loan Parties received by either Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be ~~made in Dollars. Any payment required to be made~~ applied as specified by the ~~Administrative Agent hereunder~~ Borrower Representative), (B) a mandatory prepayment (which shall be ~~deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment~~ applied in accordance with ~~the regulations~~ Section 2.11) or ~~operating procedures of the clearing or settlement system used by the Administrative Agent~~ (C) amounts to ~~make such payment. At all times that~~ be applied from a Collection Account when full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral (which shall be applied in ~~whole~~ accordance with Section 2.10) or ~~in part against the Obligations, on the day of receipt, subject to actual collection.~~ (bii) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents~~ after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, such funds shall be ~~applied,~~ applied ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the Agents ~~or any~~ and the Issuing ~~Bank~~ Banks from the ~~Borrower~~ Borrowers (other than in connection with Banking Services Obligations or ~~Secured Hedging~~ Swap Obligations), second~~, ratably~~, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower~~ Borrowers (other than in connection with Banking Services or ~~Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders~~Swap Obligations), third, to pay interest due ~~and payable~~ in respect of ~~any Revolving Loans, Swingline Loans~~ Overadvances and ~~any~~ Protective Advances~~, ratably (other than interest owing to the Tranche A-1 Lenders)~~, fourth, to pay the principal of ~~the~~ Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably, sixth, to prepay principal on the Loans (other than the Overadvances, Protective Advances, Ex-Im Revolving Loans and Term B Loans) and unreimbursed LC ~~Disbursements, ratably~~ Disbursements (other than ~~principal owing~~ unreimbursed Ex-Im LC Disbursements) ratably (with amounts applied to the ~~Tranche A-1 Lenders~~Term A Loans applied to installments of the Term A Loans in inverse order of maturity), ~~sixth~~seventh, to pay ~~an amount~~ ratably amounts to the ~~Administrative Agent~~ Agents equal to ~~101.5~~105% of the aggregate undrawn face amount of all outstanding Letters of Credit (other than Ex-Im Letters of Credit) and the aggregate amount of any unpaid LC ~~Exposure on such date~~Disbursements (other than unpaid Ex-Im LC Disbursements), to be held ~~in the LC Collateral Account~~ as cash collateral for such Obligations, ~~seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations),~~ eighth, to ~~pay interest due and payable~~ prepay principal of the Term B Loans (with amounts applied to installments of the Term B Loans in ~~respect~~ the inverse order of ~~any Revolving Loans owing to the Tranche A-1 Lenders, ratably~~maturity), ninth, to prepay principal ~~owing to the Tranche A-1 Lenders~~ on the Ex-Im Revolving Loans and unreimbursed Ex-Im LC ~~Disbursements,~~ Disbursements ratably, tenth, to pay amounts to the Administrative Agent equal to 105% of the aggregate undrawn face amount of all outstanding Ex-Im Letters of Credit and the aggregate amount of any unpaid Ex-Im LC Disbursements, to be held as cash collateral for such obligations, eleventh, to payment of any amounts owing with respect to Banking Services ~~to the extent they constitute Secured~~ Obligations and ~~Secured Hedging~~ Swap Obligations, ~~ratably, eleventh~~and twelfth, to the payment of any other Secured Obligation due to ~~the Agents~~ either Agent or any Lender by the ~~Borrower, twelfth, as provided for under the Intercreditor Agreement, and thirteenth, to the Borrower or as the Borrower shall direct~~Borrowers. (c) Any proceeds of Collateral of the Canadian Loan Parties received by either Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower Representative), (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11) or (C) amounts to be applied from the Canadian Collateral Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders so direct, such funds shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Agents and the Canadian Issuing Bank from the Canadian Borrower (other than in connection with Banking Services Obligations or Swap Obligations), second, to pay any fees or expense reimbursements then due to the Canadian Lenders from the Canadian Borrower (other than in connection with Banking Services Obligations or Swap Obligations), third, to pay interest due in respect of Canadian Overadvances and Canadian Protective Advances, fourth, to pay the principal of Canadian Overadvances and Canadian Protective Advances, fifth, to pay interest then due and payable on the Canadian Revolving Loans, sixth, to prepay principal on the Canadian Revolving Loans and unreimbursed Canadian LC Disbursements ratably, seventh, to pay an amount to the Canadian Agent equal to 105% of the aggregate undrawn face amount of all outstanding Canadian Letters of Credit and the aggregate amount of any unpaid Canadian LC Disbursements, to be held as cash collateral for such Obligations, eighth, to payment of any amounts owing by the Canadian Loan Parties in respect of Banking Services Obligations and Swap Obligations, and ninth, to the payment of any other Canadian Obligations due to either Agent or any Canadian Lender by the Canadian Borrower. In no event will any proceeds of Collateral described in this Section 2.18(c) be applied to any Domestic Obligations or Ex-Im Obligations. (d) Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower Representative, or unless an Event of Default is in existence, neither either Agent nor any Lender shall apply any payment which it receives to any CDOR Rate Loan or any Eurodollar Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or (b) in the event, and only to the extent, that with respect to CDOR Rate Loans, there are no outstanding CP Loans of the same Class, and with respect to Eurodollar Loans, there are no outstanding CBFR Loans or USBR Loans, as applicable, of the same Class and, in any such event, the applicable Borrower shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. (e) At the election of the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of any Borrower maintained with the Administrative Agent; provided, that no Borrowings of Canadian Revolving Loans, Canadian Swingline Loans, Canadian Overadvances or Canadian Protective Advances may be used to pay any of the Domestic Obligations or the Ex-Im Obligations and no amounts contained in a deposit account of the Canadian Borrower may be applied against any of the Domestic Obligations or the Ex-Im Obligations. The Company hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) the Administrative Agent to charge any deposit account of any Borrower maintained with the Administrative Agent for each payment of principal, interest and fees for which such Borrower is obligated as it becomes due hereunder or any other amount due under the Loan Documents. Each Ex-Im Borrower hereby authorizes (i) the Ex-Im Revolving Lender to make a Borrowing for the purpose of paying each payment of principal, interest and fees in respect of the Ex-Im Revolving Loans and the Ex-Im Letters of Credit as it becomes due hereunder or any other amounts due under the Loan Documents in respect of the Ex-Im Obligations and agrees that such amounts charged shall constitute Ex-Im Revolving Loans and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.03 and (ii) the Ex-Im Revolving Lender to charge any deposit account of any Ex-Im Borrower maintained with the Ex-Im Revolving Lender for each payment of principal, interest and fees for which the Ex-Im Borrowers are obligated as it becomes due hereunder or any other amount due under the Loan Documents in respect of the Ex-Im Obligations. The Canadian Borrower hereby authorizes (i) the Canadian Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees owing by it as it becomes due hereunder or any other amount due from it under the Loan Documents and agrees that all such amounts charged shall constitute Canadian Revolving Loans (including Canadian Swingline Loans and Canadian Overadvances, but such a Borrowing may only constitute a Canadian Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) each Agent to charge any deposit account of the Canadian Borrower maintained with such Agent for each payment of principal, interest and fees owing by the Canadian Borrower as it becomes due hereunder or any other amount due from it under the Loan Documents. (f) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in Ex-Im Revolving Loans and LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in Ex-Im Revolving Loans and LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and ~~participations in~~ LC ~~Disbursements, Swingline Loans and Protective Advances~~ Disbursements of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in Ex-Im Revolving Loans and LC Disbursements~~, Swingline Loans and Protective Advances~~; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by ~~the~~ any Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in~~ and LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements to any assignee or participant, other than to ~~the~~ such Borrower or any ~~subsidiary~~ Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). ~~The~~ Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against ~~the~~ such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the~~ such Borrower in the amount of such participation. (dg) Unless the Administrative Agent shall have received notice from the Borrower Representative prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or ~~the applicable~~ an Issuing Bank hereunder that the ~~Borrower~~ Borrowers will not make such payment, the Administrative Agent may assume that the ~~Borrower has~~ Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as ~~applicable~~the case may be, the amount due. In such event, if the ~~Borrower has~~ Borrowers have not in fact made such payment, then each of the Lenders or ~~the applicable~~ such Issuing Bank, as ~~applicable~~the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (eh) If any Lender shall fail to make any payment required to be made by it ~~pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c)~~hereunder, then the ~~Administrative~~ applicable Agent or the Ex-Im Revolving Lender, as applicable, may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by ~~the Administrative Agent~~ such Person for the account of such Lender to satisfy such Lender’s obligations ~~under such Sections~~ hereunder until all such unsatisfied obligations are fully ~~paid~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any such amounts to, any future funding obligations of such Lender hereunder; application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent in its discretion.

Appears in 1 contract

Sources: Credit Agreement (Park Ohio Holdings Corp)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to ~~1:30 p.m.~~noon, ~~New York City~~ Chicago time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the ~~Administrative~~ applicable Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent ~~to the applicable account designated to the Borrower by the Administrative Agent~~at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments (i) of interest in respect of Canadian Revolving Loans and payments of Letter of Credit participation fees in respect of Canadian Letters of Credit, which shall be made to the Canadian Agent, (ii) to be made directly to ~~the applicable~~ an Issuing Bank or ~~the~~ a Swingline Lender as expressly provided herein and ~~except~~ (iii) that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The ~~Administrative~~ applicable Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension~~. All payments hereunder~~ . (b) Any proceeds of Collateral of the Domestic Loan Parties received by either Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be ~~made in Dollars. Any payment required to be made~~ applied as specified by the ~~Administrative Agent hereunder~~ Borrower Representative), (B) a mandatory prepayment (which shall be ~~deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment~~ applied in accordance with ~~the regulations~~ Section 2.11) or ~~operating procedures of the clearing or settlement system used by the Administrative Agent~~ (C) amounts to ~~make such payment. At all times that~~ be applied from a Collection Account when full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral (which shall be applied in ~~whole~~ accordance with Section 2.10) or ~~in part against the Obligations, on the day of receipt, subject to actual collection.~~ (bii) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents~~ after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, such funds shall be ~~applied,~~ applied ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the Agents ~~or any~~ and the Issuing ~~Bank~~ Banks from the ~~Borrower~~ Borrowers (other than in connection with Banking Services Obligations or ~~Secured Hedging~~ Swap Obligations), second~~, ratably~~, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower~~ Borrowers (other than in connection with Banking Services or ~~Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders~~Swap Obligations), third, to pay interest due ~~and payable~~ in respect of ~~any Revolving Loans, Swingline Loans~~ Overadvances and ~~any~~ Protective Advances~~, ratably (other than interest owing to the Tranche A-1 Lenders)~~, fourth, to pay the principal of ~~the~~ Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably, sixth, to prepay principal on the Loans (other than the Overadvances, Protective ~~Advances~~Advances and Ex-Im Revolving Loans) and unreimbursed LC ~~Disbursements, ratably~~ Disbursements (other than ~~principal owing to the Tranche A-1 Lenders)~~unreimbursed Ex-Im LC Disbursements) ratably, ~~sixth~~seventh, to pay ~~an amount~~ ratably amounts to the ~~Administrative Agent~~ Agents equal to ~~101.5~~105% of the aggregate undrawn face amount of all outstanding Letters of Credit (other than Ex-Im Letters of Credit) and the aggregate amount of any unpaid LC ~~Exposure on such date~~Disbursements (other than unpaid Ex-Im LC Disbursements), to be held ~~in the LC Collateral Account~~ as cash collateral for such Obligations, ~~seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations),~~ eighth, to ~~pay interest due and payable in respect~~ payment of ~~any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay~~ any amounts owing with respect to Banking Services ~~to the extent they constitute Secured~~ Obligations and ~~Secured Hedging~~ Swap Obligations, ~~ratably, eleventh~~ninth, to the payment of any other Secured Obligation due to ~~the Agents~~ either Agent or any Lender by the ~~Borrower~~Borrowers, ~~twelfth~~tenth, ~~as provided for under~~ to prepay principal on the ~~Intercreditor Agreement~~Ex-Im Revolving Loans and unreimbursed Ex-Im LC Disbursements ratably, and ~~thirteenth~~eleventh, to pay amounts to the ~~Borrower or~~ Administrative Agent equal to 105% of the aggregate undrawn face amount of all outstanding Ex-Im Letters of Credit and the aggregate amount of any unpaid Ex-Im LC Disbursements, to be held as ~~the Borrower shall direct~~cash collateral for such obligations. (c) Any proceeds of Collateral of the Canadian Loan Parties received by either Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrower Representative), (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11) or (C) amounts to be applied from the Canadian Collateral Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders so direct, such funds shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Agents and the Canadian Issuing Bank from the Canadian Borrower (other than in connection with Banking Services Obligations or Swap Obligations), second, to pay any fees or expense reimbursements then due to the Canadian Lenders from the Canadian Borrower (other than in connection with Banking Services Obligations or Swap Obligations), third, to pay interest due in respect of Canadian Overadvances and Canadian Protective Advances, fourth, to pay the principal of Canadian Overadvances and Canadian Protective Advances, fifth, to pay interest then due and payable on the Canadian Revolving Loans, sixth, to prepay principal on the Canadian Revolving Loans and unreimbursed Canadian LC Disbursements ratably, seventh, to pay an amount to the Canadian Agent equal to 105% of the aggregate undrawn face amount of all outstanding Canadian Letters of Credit and the aggregate amount of any unpaid Canadian LC Disbursements, to be held as cash collateral for such Obligations, eighth, to payment of any amounts owing by the Canadian Loan Parties in respect of Banking Services Obligations and Swap Obligations, and ninth, to the payment of any other Canadian Obligations due to either Agent or any Canadian Lender by the Canadian Borrower. In no event will any proceeds of Collateral described in this Section 2.18(c) be applied to any Domestic Obligations or Ex-Im Obligations. (d) Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower Representative, or unless an Event of Default is in existence, neither either Agent nor any Lender shall apply any payment which it receives to any CDOR Rate Loan or any Eurodollar Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or (b) in the event, and only to the extent, that with respect to CDOR Rate Loans, there are no outstanding CP Loans of the same Class, and with respect to Eurodollar Loans, there are no outstanding CBFR Loans or USBR Loans, as applicable, of the same Class and, in any such event, the applicable Borrower shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. (e) At the election of the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of any Borrower maintained with the Administrative Agent; provided, that no Borrowings of Canadian Revolving Loans, Canadian Swingline Loans, Canadian Overadvances or Canadian Protective Advances may be used to pay any of the Domestic Obligations or the Ex-Im Obligations and no amounts contained in a deposit account of the Canadian Borrower may be applied against any of the Domestic Obligations or the Ex-Im Obligations. The Company hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) the Administrative Agent to charge any deposit account of any Borrower maintained with the Administrative Agent for each payment of principal, interest and fees for which such Borrower is obligated as it becomes due hereunder or any other amount due under the Loan Documents. Each Ex-Im Borrower hereby authorizes (i) the Ex-Im Revolving Lender to make a Borrowing for the purpose of paying each payment of principal, interest and fees in respect of the Ex-Im Revolving Loans and the Ex-Im Letters of Credit as it becomes due hereunder or any other amounts due under the Loan Documents in respect of the Ex-Im Obligations and agrees that such amounts charged shall constitute Ex-Im Revolving Loans and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.03 and (ii) the Ex-Im Revolving Lender to charge any deposit account of any Ex-Im Borrower maintained with the Ex-Im Revolving Lender for each payment of principal, interest and fees for which the Ex-Im Borrowers are obligated as it becomes due hereunder or any other amount due under the Loan Documents in respect of the Ex-Im Obligations. The Canadian Borrower hereby authorizes (i) the Canadian Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees owing by it as it becomes due hereunder or any other amount due from it under the Loan Documents and agrees that all such amounts charged shall constitute Canadian Revolving Loans (including Canadian Swingline Loans and Canadian Overadvances, but such a Borrowing may only constitute a Canadian Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) each Agent to charge any deposit account of the Canadian Borrower maintained with such Agent for each payment of principal, interest and fees owing by the Canadian Borrower as it becomes due hereunder or any other amount due from it under the Loan Documents. (f) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in Ex-Im Revolving Loans and LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in Ex-Im Revolving Loans and LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and ~~participations in~~ LC ~~Disbursements, Swingline Loans and Protective Advances~~ Disbursements of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in Ex-Im Revolving Loans and LC Disbursements~~, Swingline Loans and Protective Advances~~; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by ~~the~~ any Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in~~ and LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements to any assignee or participant, other than to ~~the~~ such Borrower or any ~~subsidiary~~ Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). ~~The~~ Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against ~~the~~ such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the~~ such Borrower in the amount of such participation. (dg) Unless the Administrative Agent shall have received notice from the Borrower Representative prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or ~~the applicable~~ an Issuing Bank hereunder that the ~~Borrower~~ Borrowers will not make such payment, the Administrative Agent may assume that the ~~Borrower has~~ Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as ~~applicable~~the case may be, the amount due. In such event, if the ~~Borrower has~~ Borrowers have not in fact made such payment, then each of the Lenders or ~~the applicable~~ such Issuing Bank, as ~~applicable~~the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (eh) If any Lender shall fail to make any payment required to be made by it ~~pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c)~~hereunder, then the ~~Administrative~~ applicable Agent or the Ex-Im Revolving Lender, as applicable, may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by ~~the Administrative Agent~~ such Person for the account of such Lender to satisfy such Lender’s obligations ~~under such Sections~~ hereunder until all such unsatisfied obligations are fully ~~paid~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any such amounts to, any future funding obligations of such Lender hereunder; application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent in its discretion.

Appears in 1 contract

Sources: Credit Agreement (Park Ohio Industries Inc/Oh)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the Borrower~~ The Borrowers shall make each payment required to be made by it them hereunder (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.13, 2.14 or 2.15~~, 2.16 or 2.17~~, or otherwise) prior to ~~1:30~~ 1:00 p.m., New York ~~City~~ time, on the date when due, in immediately available funds, without ~~set-~~set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent ~~to the applicable account designated to the Borrower~~ at its offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Unless otherwise expressly provided in a Loan Document, all payments by the ~~Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments~~ Borrowers pursuant to ~~Sections 2.15, 2.16, 2.17 and 9.03~~ each Loan Document shall be made ~~directly~~ by the Borrowers to the ~~Persons~~ Administrative Agent for the pro rata account of the Secured Parties entitled ~~thereto~~to receive such payment. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in ~~Dollars~~dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely Solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all~~ Any proceeds of Collateral received by the ~~Agents~~ Administrative Agent in its capacity as such (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents, or (B) a mandatory prepayment (which shall be applied in accordance with Section 2.09), or (ii) after an Event of Default has occurred and is ~~continuing and all or any portion of~~ continuing, such funds shall be applied ratably, subject to the ~~Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of the Required Lenders be applied~~Intercreditor Agreement, first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements related to the Term Loans, including amounts then due to the ~~Agents or any Issuing Bank~~ Administrative Agent from the ~~Borrower~~ Borrowers (other than in connection with ~~Banking Services or Secured Hedging~~ Swap Obligations), second~~, ratably~~, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower~~ Borrowers (other than in connection with ~~Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders~~Swap Obligations), third, to pay interest then due and payable ~~in respect of any Revolving~~ on the Loans~~, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders)~~, fourth, to ~~pay~~ the ~~principal~~ payment of ~~the Protective Advances, fifth, to prepay~~ principal on the Loans ~~(other than the Protective Advances)~~ and ~~unreimbursed LC Disbursements, ratably (other than principal owing~~ to ~~the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5%~~ payment of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to ~~Banking Services to the extent they constitute Secured Obligations and Secured Hedging~~ Swap Obligations, ~~ratably, eleventh~~fifth, to the payment of any other ~~Secured~~ Obligation due to the ~~Agents~~ Administrative Agent or any Lender by the Borrowers, sixth, to payment of amounts owing pursuant to the Second Lien Term Loan Credit Agreement and seventh, to prepay amounts pursuant to the Revolving Credit Agreement. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Administrative Borrower, ~~twelfth~~or unless a Default is in existence, ~~as provided for under~~ neither the ~~Intercreditor Agreement~~Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan, or (b) in the event, and ~~thirteenth,~~ only to the ~~Borrower or as~~ extent, that there are no outstanding ABR Loans and, in any event, the ~~Borrower~~ Borrowers shall ~~direct~~pay the break funding payment required in accordance with Section 2.14. (c) If At the election of the Administrative Agent, all payments of principal, interest, fees, premiums, reimbursable expenses (including, without limitation, all documented reimbursement for fees and expenses pursuant to Section 9.03), and other documented sums payable under the Loan Documents, may be deducted from any ~~Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect~~ deposit account of any ~~principal~~ Borrower maintained with the Administrative Agent. The Borrowers hereby irrevocably authorize the Administrative Agent to charge any deposit account of ~~or interest on~~ any ~~of its Loans or participations in LC Disbursements, Swingline Loans or Protective Advances resulting in such Lender receiving~~ Borrower maintained with the Administrative Agent for each payment of ~~a greater proportion of the aggregate amount of its Loans~~ principal, interest and ~~participations in LC Disbursements, Swingline Loans~~ fees as it becomes due hereunder or ~~Protective Advances and accrued interest thereon than the proportion received by~~ any other ~~Lender, then~~ miscellaneous expenses due under the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements, Swingline Loans and Protective Advances of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements, Swingline Loans and Protective Advances; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements, Swingline Loans or Protective Advances to any assignee or participant, other than to the Borrower or any subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationLoan Documents. (d) Unless the Administrative Agent shall have received notice from the Administrative Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the applicable Issuing Bank~~ hereunder that the ~~Borrower~~ Borrowers will not make such payment, the Administrative Agent may assume that the ~~Borrower has~~ Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders ~~or the applicable Issuing Bank, as applicable,~~ the amount due. In such event, if the ~~Borrower has~~ Borrowers have not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to ~~Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c~~2.16(d) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Appears in 1 contract

Sources: First Lien Term Loan Credit Agreement (Talecris Biotherapeutics Holdings Corp.)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the Borrower~~ The Borrowers shall make each payment required to be made by it them hereunder (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.13, 2.14 or 2.15~~, 2.16 or 2.17~~, or otherwise) prior to ~~1:30~~ 1:00 p.m., New York ~~City~~ time, on the date when due, in immediately available funds, without ~~set-~~set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent ~~to the applicable account designated to the Borrower~~ at its offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. Unless otherwise expressly provided in a Loan Document, all payments by the ~~Administrative Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments~~ Borrowers pursuant to ~~Sections 2.15, 2.16, 2.17 and 9.03~~ each Loan Document shall be made ~~directly~~ by the Borrowers to the ~~Persons~~ Administrative Agent for the pro rata account of the Secured Parties entitled ~~thereto~~to receive such payment. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collectiondollars. (b) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all~~ Any proceeds of Collateral received by the ~~Agents~~ Administrative Agent in its capacity as such (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents, or (B) a mandatory prepayment (which shall be applied in accordance with Section 2.09), or (ii) after an Event of Default has occurred and is ~~continuing and all or any portion of~~ continuing, such funds shall be applied ratably, subject to the ~~Loans~~ Intercreditor Agreement; provided that after the First Lien Termination Date, such funds shall ~~have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of the Required Lenders~~ be ~~applied,~~ applied as follows: first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements related to the Term Loans, including amounts then due to the ~~Agents or any Issuing Bank~~ Administrative Agent from the ~~Borrower~~ Borrowers (other than in connection with ~~Banking Services or Secured Hedging~~ Swap Obligations), second~~, ratably~~, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower~~ Borrowers (other than in connection with ~~Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders~~Swap Obligations), third, to pay interest then due and payable ~~in respect of any Revolving~~ on the Loans~~, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders)~~, fourth, to ~~pay~~ the ~~principal~~ payment of ~~the Protective Advances, fifth, to prepay~~ principal on the Loans ~~(other than the Protective Advances)~~ and ~~unreimbursed LC Disbursements, ratably (other than principal owing~~ to ~~the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5%~~ payment of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to ~~Banking Services to the extent they constitute Secured Obligations and Secured Hedging~~ Swap Obligations, ~~ratably, eleventh~~fifth, to the payment of any other ~~Secured~~ Obligation due to the ~~Agents~~ Administrative Agent or any Lender by the Borrowers and sixth, to prepay amounts pursuant to the Revolving Credit Agreement. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Administrative Borrower, ~~twelfth~~or unless a Default is in existence, ~~as provided for under~~ neither the ~~Intercreditor Agreement~~Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan, or (b) in the event, and ~~thirteenth,~~ only to the ~~Borrower or as~~ extent, that there are no outstanding ABR Loans and, in any event, the ~~Borrower~~ Borrowers shall ~~direct~~pay the break funding payment required in accordance with Section 2.14. (c) If At the election of the Administrative Agent, all payments of principal, interest, fees, premiums, reimbursable expenses (including, without limitation, all documented reimbursement for fees and expenses pursuant to Section 9.03), and other documented sums payable under the Loan Documents, may be deducted from any ~~Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect~~ deposit account of any ~~principal~~ Borrower maintained with the Administrative Agent. The Borrowers hereby irrevocably authorize the Administrative Agent to charge any deposit account of ~~or interest on~~ any ~~of its Loans or participations in LC Disbursements, Swingline Loans or Protective Advances resulting in such Lender receiving~~ Borrower maintained with the Administrative Agent for each payment of ~~a greater proportion of the aggregate amount of its Loans~~ principal, interest and ~~participations in LC Disbursements, Swingline Loans~~ fees as it becomes due hereunder or ~~Protective Advances and accrued interest thereon than the proportion received by~~ any other ~~Lender, then~~ miscellaneous expenses due under the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements, Swingline Loans and Protective Advances of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements, Swingline Loans and Protective Advances; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements, Swingline Loans or Protective Advances to any assignee or participant, other than to the Borrower or any subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participationLoan Documents. (d) Unless the Administrative Agent shall have received notice from the Administrative Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the applicable Issuing Bank~~ hereunder that the ~~Borrower~~ Borrowers will not make such payment, the Administrative Agent may assume that the ~~Borrower has~~ Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders ~~or the applicable Issuing Bank, as applicable,~~ the amount due. In such event, if the ~~Borrower has~~ Borrowers have not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to ~~Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c~~2.16(d) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Appears in 1 contract

Sources: Second Lien Term Loan Credit Agreement (Talecris Biotherapeutics Holdings Corp.)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified~~The(i) Except with respect to principal of and interest on Loans denominated in an Alternative Currency, the ~~Borrower~~ Borrowers shall make each payment required to be made by it them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, Section 2.16 or ~~2.17~~Section 2.17,2.17, or otherwise) prior to ~~1:30~~ 2:00 p.m., ~~New York City~~ London time, with respect to any UK Loan, or 2:00 p.m., Chicago time, on the date when ~~due~~duein any other case, on the date when due and (ii) all payments with respect to principal of and interest on Loans denominated in an Alternative Currency shall be made in such Alternative Currency not later than the Applicable Time specified by the Administrative Agent on the dates specified herein, in each case, in immediately available funds, without ~~set-off~~ set‑offsetoff, recoupment or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, except payments(i) payments of UK Loans shall be made to the ~~applicable account designated to the Borrower by the~~ Administrative ~~Agent~~Agent at its offices at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ~~except~~ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and (ii) payments to be made directly to ~~the applicable~~ an Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to ~~Sections~~ Section 2.15, Section 2.16, Section 2.17 and Section 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in ~~Dollars. Any~~ dollars.Dollars (in the U.S. Dollar Amount of the Alternative Currency payment ~~required~~ amount, to the extent applicable); provided that any payments hereunder in respect of Borrowings made or Letters of Credit issued in any Alternative Currency may be made by in such Alternative Currency. Without limiting the generality of the foregoing, the Administrative Agent ~~hereunder shall~~ may require that any payments due under this Agreement be ~~deemed to have been~~ made by in the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collectionUnited States. (b) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all~~ Any proceeds of Collateral received by the ~~Agents~~ Administrative Agent (1) not constituting either (a) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers), (a) a mandatory prepayment, including any Net Proceeds received pursuant to Section 2.11(c) (which shall be applied in accordance with Section 2.11) or (a) amounts to be applied from the Collection Account (which shall be applied in accordance with Section 2.10(b)) or (1) after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, shall be ~~applied,~~ applied ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the ~~Agents or any~~ Administrative Agent and the Issuing ~~Bank~~ Banks from the ~~Borrower~~ Borrowers (other than in connection with Banking Services Obligations or ~~Secured Hedging~~ Swap Obligations), second~~, ratably~~, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower~~ Borrowers (other than in connection with Banking Services Obligations or ~~Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders~~Swap Obligations), third, to pay interest due ~~and payable~~ in respect of ~~any Revolving Loans, Swingline Loans~~ the Overadvances and ~~any~~ Protective Advances~~, ratably (other than interest owing to the Tranche A-1 Lenders)~~, fourth, to pay the principal of the Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably, sixth, to prepay principal on the Loans (other than the Overadvances and Protective Advances) and unreimbursed LC Disbursements, ~~ratably (other than principal owing to the Tranche A-1 Lenders)~~ratably, ~~sixth~~seventh, to pay an amount to the Administrative Agent equal to ~~101.5%~~ one hundred five percent (105%) of the aggregate undrawn face amount of all outstanding Letters of Credit and the aggregate amount of any unpaid LC ~~Exposure on such date~~Disbursements, to be held ~~in the LC Collateral Account~~ as cash collateral for such Obligations, ~~seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations),~~ eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services Obligations and Swap Obligations up to and including the amount most recently provided to the ~~extent they constitute Secured Obligations~~ Administrative Agent pursuant to Section 2.22, and ~~Secured Hedging Obligations, ratably, eleventh~~ninth, to the payment of any other Secured Obligation due to the ~~Agents~~ Administrative Agent or any Lender by the ~~Borrower~~Borrowers. Notwithstanding the foregoing, ~~twelfth~~amounts received from any Loan Party shall not be applied to any Excluded Swap Obligation of such Loan Party. Notwithstanding anything to the contrary contained in this Agreement, ~~as provided for under~~ unless so directed by the Borrower Representative, or unless a Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any EurodollarTerm Benchmark Loan of a Class, except 1. on the expiration date of the Interest Period applicable thereto or 1. in the event, and only to the extent, that there are no outstanding ABR Loans of the same Class and, in any such event, the Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations (other than in the case of any proceeds received from the UK Borrowers or pursuant to the UK Collateral Documents, which shall only be applied to the UK Secured Obligations). Notwithstanding anything to the contrary contained in this Agreement, upon the occurrence and during the continuance of an Event of Default, the proceeds of any sale of, or other realization upon, all or any part of the Collateral shall be applied in accordance with the terms of the Intercreditor Agreement~~, and thirteenth, to the Borrower or as the Borrower shall direct~~. (c) If At the election of the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, insurance premiums, reimbursable expenses (including, without limitation, all reimbursement for fees, costs and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section 2.18 or may be deducted from any deposit account of any Borrower maintained with the Administrative Agent. The Borrowers hereby irrevocably authorize (1) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Section 2.03, Section 2.04 or Section 2.05, as applicable, and (1) the Administrative Agent to charge any deposit account of any Borrower maintained with the Administrative Agent for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents. (d) If, except as otherwise expressly provided herein, any Lender shall, by exercising any right of ~~set-off~~ set‑off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC ~~Disbursements,~~ Disbursements and Swingline Loans ~~or Protective Advances~~ and accrued interest thereon than the proportion received by any other similarly situated Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC ~~Disbursements,~~ Disbursements and Swingline Loans ~~and Protective Advances~~ of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by ~~the~~ all such Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC ~~Disbursements,~~ Disbursements and Swingline ~~Loans and Protective Advances~~Loans; provided that (i1) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii1) the provisions of this paragraph shall not be construed to apply to any payment made by the ~~Borrower~~ Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC ~~Disbursements,~~ Disbursements or Swingline Loans ~~or Protective Advances~~ to any assignee or participant, other than to the ~~Borrower~~ Borrowers or any ~~subsidiary or Affiliate~~ Subsidiary thereof (as to which the provisions of this paragraph shall apply). ~~The~~ Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against ~~the~~ such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the~~ such Borrower in the amount of such participation. (de) Unless the Administrative Agent shall have received notice from the Borrower Representative prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or the applicable Issuing ~~Bank~~ Banks hereunder that the ~~Borrower~~ Borrowers will not make such payment, the Administrative Agent may assume that the ~~Borrower has~~ Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing ~~Bank~~Banks, as ~~applicable~~the case may be, the amount due. In such event, if the ~~Borrower has~~ Borrowers have not in fact made such payment, then each of the Lenders or each of the ~~applicable~~ Issuing ~~Bank~~Banks, as ~~applicable~~the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (ef) If any Lender shall fail to make any payment required to be made by it ~~pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c)~~hereunder, then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), (1) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations ~~under such Sections~~ hereunder until all such unsatisfied obligations are fully ~~paid~~paid and/or (1) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender hereunder. Application of amounts pursuant to clause (i) and clause (ii) above shall be made in any order determined by the Administrative Agent in its discretion. (g) The Administrative Agent may from time to time provide the Borrowers with account statements or invoices with respect to any of the Secured Obligations (the “Statements”). The Administrative Agent is under no duty or obligation to provide Statements, which, if provided, will be solely for the Borrowers’ convenience. Statements may contain estimates of the amounts owed during the relevant billing period, whether of principal, interest, fees or other Secured Obligations. If the Borrowers pay the full amount indicated on a Statement on or before the due date indicated on such Statement, the Borrowers shall not be in default of payment with respect to the billing period indicated on such Statement; provided, that acceptance by the Administrative Agent, on behalf of the Lenders, of any payment that is less than the total amount actually due at that time (including but not limited to any past due amounts) shall not constitute a waiver of the Administrative Agent’s or the Lenders’ right to receive payment in full at another time.

Appears in 1 contract

Sources: Credit Agreement (Tetra Technologies Inc)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, ~~fees~~ or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.15, ~~2.16~~ 2.16, 2.17 or ~~2.17~~9.03, or otherwise) at or prior to ~~1:30~~ the time expressly required hereunder or under any other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to at its offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such other address that the ~~applicable account designated to~~ Administrative Agent shall advise the Borrower ~~by the Administrative Agent~~in writing, ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and~~ except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled ~~thereto~~thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment ~~hereunder~~ under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business ~~Day,~~ Day and, in the case of any payment accruing ~~interest~~interest or any payment of fees, such interest ~~thereon~~ or fees, as applicable, shall be payable for the period of such extension. All payments ~~hereunder~~ under any Loan Document shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collectiondollars. (b) ~~Subject~~ Prior to any repayment of any Borrowings hereunder (other than the repayment in full of all ~~respects~~ outstanding Borrowings on the scheduled date of such repayment), the Borrower shall select the Borrowing or Borrowings to be paid and shall notify the Administrative Agent by telephone (confirmed by facsimile) of such selection at the times and on the days provided in Section 2.09; provided, that each repayment of Borrowings shall be applied to repay any outstanding ABR Borrowings before any other Borrowings. If the Borrower fails to make a timely selection of the Borrowing or Borrowings to be repaid (in accordance with the immediately preceding sentence) or prepaid (in accordance with Section 2.09), such payment shall be applied, first, to pay any outstanding ABR Borrowings and, second, to other Borrowings in the order of the remaining duration of their respective Interest Periods (the Borrowing with the shortest remaining Interest Period to be repaid first). Each repayment or prepayment of a Borrowing shall be applied ratably to the ~~provisions of the Intercreditor Agreement, all proceeds of Collateral~~ Loans included in such Borrowing. (c) Any amounts received by the ~~Agents~~ Administrative Agent in accordance with this Agreement or another Loan Document (i) not constituting a specific payment of principal, interest, fees or other sum payable under the Loan Documents, or (ii) after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, shall be ~~applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due~~ applied ratably to the Agents or any Issuing Bank from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders), third, to pay interest due and payable in respect of any Revolving Loans, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders), fourth, to pay the principal of the Protective Advances, fifth, to prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhfollows: first, to the payment of all costs and expenses incurred by the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement, any other ~~Secured Obligation due to the Agents~~ Loan Document or any ~~Lender~~ of the Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the ~~Borrower~~Administrative Agent hereunder or under any other Loan Document on behalf of any Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document, ~~twelfth, as provided for under the Intercreditor Agreement, and thirteenth~~second, to the payment in full of the Obligations (the amounts so applied to be distributed among the Lenders pro rata in accordance with the amounts of the Obligations owed to them on the date of any such distribution), and third, to the Loan Parties, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower or as an Event of Default has occurred and is continuing, neither the Administrative Agent nor any Lender shall apply any payment that it receives to a Eurocurrency Loan, except (x) on the expiration date of the Interest Period applicable to any such Eurocurrency Loan or (y) in the event, and only to the extent, that there are no outstanding ABR Loans and, in any such event, the Borrower shall ~~direct~~pay any break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Obligations in accordance with the terms of this Agreement. (cd) Except to the extent otherwise provided herein: (i) each Borrowing shall be made from the Lenders, each payment of Commitment Fees under Section 2.12(a) shall be made for the accounts of the Lenders, and each termination or reduction of the Commitments under Sections 2.09 and 2.11 shall be applied to the respective Commitments of the Lenders ratably among the undrawn Commitments then outstanding; (ii) each Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective Commitments (in the case of the making of Loans) or their respective Loans that are to be included in such Borrowing (in the case of conversions and continuations of Loans); (iii) each payment or prepayment of principal of the Loans by the Borrower shall be made for the account of the relevant Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans made to the Borrower and held by them; and (iv) each payment of interest on the Loans by the Borrower shall be made for the accounts of the Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to them. (e) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties. (f) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and ~~participations in LC Disbursements, Swingline Loans or Protective Advances and~~ accrued interest thereon then due than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Loans and participations in LC Disbursements~~Loans; provided, ~~Swingline Loans and Protective Advances; provided~~ that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this ~~paragraph~~ clause (f) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the Borrower or any ~~subsidiary~~ Subsidiary or other Affiliate thereof (as to which the provisions of this ~~paragraph~~ clause (f) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (dg) Unless the Administrative Agent shall have received notice from the ~~Borrower~~ Borrower, prior to the date on which any payment is due to the Administrative Agent for the account of ~~the Lenders or the applicable Issuing Bank hereunder~~ a Lender hereunder, that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to ~~the Lenders or the applicable Issuing Bank, as applicable,~~ such Lender the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (eh) If any Lender shall fail to make any payment required to be made by it pursuant to ~~Sections 2.04(b), 2.05(b), 2.06(d) or (e),~~ Section 2.07(b), ~~2.18(c~~2.17(d), 2.18(g) or 9.03(c), then the Administrative Agent may, in its discretion (and notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent (or, following the payment of all amounts then due to the Administrative Agent, to the extent the Lenders shall have funded payments to the Administrative Agent in respect of other such amounts, for the benefit of the other Lenders) to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.

Appears in 1 contract

Sources: Term Loan Agreement (Tyson Foods Inc)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ The Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, ~~fees~~ or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section 2.15, ~~2.16~~ 2.16, 2.17 or ~~2.17~~9.03, or otherwise) at or prior to ~~1:30~~ the time expressly required hereunder or under any other Loan Document for such payment (or, if no such time is expressly required, prior to 2:00 p.m., New York City time), on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to at its offices at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ or at such other address that the ~~applicable account designated to~~ Administrative Agent shall advise the Borrower ~~by the Administrative Agent~~in writing, ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and~~ except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled ~~thereto~~thereto and payments pursuant to other Loan Documents shall be made to the Persons specified therein. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment ~~hereunder~~ under any Loan Document shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business ~~Day,~~ Day and, in the case of any payment accruing ~~interest~~interest or any payment of fees, such interest ~~thereon~~ or fees, as applicable, shall be payable for the period of such extension. All payments ~~hereunder~~ under any Loan Document shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collectiondollars. (b) ~~Subject~~ Prior to any repayment of any Borrowings hereunder (other than the repayment in full of all ~~respects~~ outstanding Borrowings on the scheduled date of such repayment), the Borrower shall select the Borrowing or Borrowings to be paid and shall notify the Administrative Agent by telephone (confirmed by facsimile) of such selection at the times and on the days provided in Section 2.09 and 2.11; provided, that each repayment of Borrowings shall be applied to repay any outstanding ABR Borrowings before any other Borrowings. If the Borrower fails to make a timely selection of the Borrowing or Borrowings to be repaid (in accordance with the immediately preceding sentence) or prepaid (in accordance with Section 2.09 or 2.11), such payment shall be applied, first, to pay any outstanding ABR Borrowings and, second, to other Borrowings in the order of the remaining duration of their respective Interest Periods (the Borrowing with the shortest remaining Interest Period to be repaid first). Each repayment or prepayment of a Borrowing shall be applied ratably to the ~~provisions of the Intercreditor Agreement, all proceeds of Collateral~~ Loans included in such Borrowing. (c) Any amounts received by the ~~Agents~~ Administrative Agent in accordance with this Agreement or another Loan Document (i) not constituting (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents, or (B) a mandatory prepayment under Section 2.11 (which shall be applied in accordance with Section 2.11), or (i) after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, shall be ~~applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due~~ applied ratably to the Agents or any Issuing Bank from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders), third, to pay interest due and payable in respect of any Revolving Loans, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders), fourth, to pay the principal of the Protective Advances, fifth, to prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhfollows: first, to the payment of all costs and expenses incurred by the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement, any other ~~Secured Obligation due to the Agents~~ Loan Document or any ~~Lender~~ of the Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the ~~Borrower~~Administrative Agent hereunder or under any other Loan Document on behalf of any Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document, ~~twelfth, as provided for under the Intercreditor Agreement, and thirteenth~~second, to the payment in full of the Obligations (the amounts so applied to be distributed among the Lenders pro rata in accordance with the amounts of the Obligations owed to them on the date of any such distribution), and third, to the Loan Parties, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower or as an Event of Default has occurred and is continuing, neither the Administrative Agent nor any Lender shall apply any payment that it receives to a Eurocurrency Loan, except (x) on the expiration date of the Interest Period applicable to any such Eurocurrency Loan or (y) in the event, and only to the extent, that there are no outstanding ABR Loans and, in any such event, the Borrower shall ~~direct~~pay any break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Obligations in accordance with the terms of this Agreement. (cd) Except to the extent otherwise provided herein (including Section 2.21): (i) each Borrowing shall be made from the Lenders and the termination and reduction of the Commitments under Section 2.11 shall be applied to the respective Commitments of the Lenders ratably among the undrawn Commitments then outstanding; (i) each Borrowing shall be allocated pro rata among the Lenders according to the amounts of their respective Commitments (in the case of the making of Loans) or their respective Loans that are to be included in such Borrowing (in the case of conversions and continuations of Loans); (i) each payment or prepayment of principal of the Loans by the Borrower shall be made for the account of the relevant Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans made to the Borrower and held by them; and (i) each payment of interest on the Loans by the Borrower shall be made for the accounts of the Lenders pro rata in accordance with the amounts of interest on such Loans then due and payable to them. (e) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (i) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties. (f) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and ~~participations in LC Disbursements, Swingline Loans or Protective Advances and~~ accrued interest thereon then due than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Loans and participations in LC Disbursements~~Loans; provided, ~~Swingline Loans and Protective Advances; provided~~ that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (iii) the provisions of this ~~paragraph~~ clause (f) shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the Borrower or any ~~subsidiary~~ Subsidiary or other Affiliate thereof (as to which the provisions of this ~~paragraph~~ clause (f) shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (dg) Unless the Administrative Agent shall have received notice from the ~~Borrower~~ Borrower, prior to the date on which any payment is due to the Administrative Agent for the account of ~~the Lenders or the applicable Issuing Bank hereunder~~ a Lender hereunder, that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to ~~the Lenders or the applicable Issuing Bank, as applicable,~~ such Lender the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (eh) If any Lender shall fail to make any payment required to be made by it pursuant to ~~Sections 2.04(b), 2.05(b), 2.06(d) or (e),~~ Section 2.07(b), ~~2.18(c~~2.17(d), 2.18(g) or 9.03(c), then the Administrative Agent may, in its discretion (and notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender for the benefit of the Administrative Agent (or, following the payment of all amounts then due to the Administrative Agent, to the extent the Lenders shall have funded payments to the Administrative Agent in respect of other such amounts, for the benefit of the other Lenders) to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (i) hold any such amounts in a segregated account as cash collateral for, and application to, any future funding obligations of such Lender under such Sections; in the case of each of clauses (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion.

Appears in 1 contract

Sources: Term Loan Agreement (Tyson Foods, Inc.)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. ~~(a) Unless otherwise specified, the~~ 2.18.1. Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to ~~1:30 p.m.~~12:00 noon, ~~New York City~~ Chicago time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of ~~the Administrative~~ Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to Agent at the ~~Administrative~~ address for payment specified in writing by Agent to ~~the applicable account designated to the Borrower by the Administrative Agent~~Borrower, except payments to be made directly to ~~the applicable Issuing Bank~~ an LC Issuer or ~~the~~ to Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and ~~9.03~~ 10.3 shall be made directly to the Persons entitled thereto. ~~The Administrative~~ Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in U.S. Dollars. 2.18.2. Any proceeds of Collateral received by Agent (i) not constituting either (A) a specific payment ~~required to~~ of principal, interest, fees or other sum payable under the Loan Documents (which shall if no Event of Default has occurred or is continuing be ~~made~~ applied as specified by ~~the Administrative Agent hereunder~~ Borrower), (B) a mandatory prepayment (which shall be ~~deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment~~ applied in accordance with Section 2.11) or (C) amounts to be applied from the ~~regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full~~ Collection Account when cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral (which shall be applied in ~~whole~~ accordance with Section 2.10.2) or ~~in part against the Obligations, on the day of receipt, subject to actual collection.~~ (bii) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents~~ after an Event of Default has occurred and is continuing and ~~all~~ Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, shall be ~~applied,~~ applied ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to ~~the Agents or~~ Agent and any ~~Issuing Bank~~ LC Issuer from ~~the~~ Borrower (other than in connection with Banking Services or ~~Secured Hedging~~ Swap Obligations), second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders), third, to pay interest due ~~and payable~~ in respect of ~~any Revolving Loans, Swingline Loans~~ the Overadvances and ~~any~~ Protective Advances, ~~ratably (other than interest owing to the Tranche A-1 Lenders), fourth~~third, to pay the principal of the Overadvances and Protective Advances, fourth, to pay interest then due in respect of the Swingline Loans, fifth, to pay the principal on the Swingline Loans, sixth, to pay interest then due and payable on the Loans (other than the Overadvances, Protective Advances and Swingline Loans) ratably, seventh, to prepay principal on the Loans (other than the Overadvances, Protective ~~Advances~~Advances and Swingline Loans) and unreimbursed or unpaid LC ~~Disbursements~~Disbursements ratably, ~~ratably (other than principal owing to the Tranche A-1 Lenders), sixth~~eighth, to pay an amount to ~~the Administrative~~ Agent equal to ~~101.5%~~ one hundred three percent (103%) of the ~~LC Exposure on such date~~aggregate undrawn face amount of all outstanding Letters of Credit, to be held ~~in the LC Collateral Account~~ as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to ~~prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay~~ payment of any amounts owing with respect to Banking Services Obligations and Swap Obligations, in each case, to the extent that they constitute Secured ~~Obligations and Secured Hedging~~ Obligations, ~~ratably, eleventh~~and tenth, to the payment of any other Secured Obligation due to ~~the Agents~~ Agent or any Lender by any Credit Party. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by Borrower, ~~twelfth~~or unless an Event of Default is in existence, neither Agent nor any Lender shall apply any payment which it receives to any LIBOR Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such LIBOR Loan or (b) in the event, and only to the extent, that there are no outstanding Base Rate Loans of the same Class and, in any such event, Borrower shall pay the break funding payment required in accordance with Section 2.16. Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. 2.18.3. At the election of Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 10.3), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by Borrower pursuant to Section 2.3 or a deemed request as provided in this Section or may be deducted from any deposit account of Borrower maintained with Agent. Borrower hereby irrevocably authorizes (i) Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 10.3) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.3, 2.4 or 2.5, as ~~provided~~ applicable and (ii) Agent to charge any deposit account of Borrower maintained with Agent for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the ~~Intercreditor Agreement, and thirteenth, to the Borrower or as the Borrower shall direct~~Loan Documents. ~~(c)~~ 2.18.4. If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC ~~Disbursements, Swingline Loans and Protective Advances~~ Disbursements of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements~~, Swingline Loans and Protective Advances~~; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by ~~the Borrower~~ any Credit Party pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements to any assignee or participant, other than to ~~the Borrower or~~ any ~~subsidiary~~ Credit Party or Affiliate thereof (as to which the provisions of this ~~paragraph~~ Section 2.18.4 shall apply). ~~The Borrower~~ Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against ~~the Borrower~~ each Credit Party rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the Borrower~~ such Credit Party in the amount of such participation. ~~(d)~~ 2.18.5. Unless ~~the Administrative~~ Agent shall have received notice from ~~the~~ Borrower prior to the date on which any payment is due to ~~the Administrative~~ Agent for the account of the Lenders or ~~the applicable Issuing Bank~~ LC Issuers hereunder that ~~the~~ Borrower will not make such payment, ~~the Administrative~~ Agent may assume that ~~the~~ Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or ~~the applicable Issuing Bank~~LC Issuers, as ~~applicable~~the case may be, the amount due. In such event, if ~~the~~ Borrower has not in fact made such payment, then each of the Lenders or ~~the applicable Issuing Bank~~LC Issuers, as ~~applicable~~the case may be, severally agrees to repay to ~~the Administrative~~ Agent forthwith on demand the amount so distributed to such Lender or ~~Issuing Bank~~ such LC Issuer with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to ~~the Administrative~~ Agent, at the greater of the Federal Funds Effective Rate and a rate determined by ~~the Administrative~~ Agent in accordance with banking industry rules on interbank compensation. ~~(e)~~ 2.18.6. If any Lender shall fail to make any payment required to be made by it ~~pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c)~~hereunder, then ~~the Administrative~~ Agent may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by ~~the Administrative~~ Agent for the account of such Lender to satisfy such Lender’s obligations ~~under such Sections~~ hereunder until all such unsatisfied obligations are fully ~~paid~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any such amounts to, any future funding obligations of such Lender hereunder; application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by Agent in its discretion.

Appears in 1 contract

Sources: Financing Agreement (Titanium Metals Corp)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to ~~1:30 p.m.~~12:00 (noon), New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the ~~Administrative~~ Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the ~~Administrative~~ Agent to the applicable account designated to the Borrower by the ~~Administrative~~ Agent, except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The ~~Administrative~~ Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the ~~Administrative~~ Agent hereunder shall be deemed to have been made by the time required if the ~~Administrative~~ Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the ~~Administrative~~ Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the ~~Agents~~ Agent after an Event of Default has occurred and is continuing and all or any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the ~~Agents~~ Agent or at the direction of the Required Lenders be applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due to the ~~Agents~~ Agent or any Issuing Bank from the Borrower (other than in connection with Banking Services or Secured ~~Hedging~~ Swap Obligations), second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services or Secured ~~Hedging Obligations and other than fees owing to the Tranche A-1 Lenders~~Swap Obligations), third, to pay interest due and payable in respect of any Revolving Loans (including any Swingline Loans~~, Swingline Loans~~ ) and any Protective Advances, ~~ratably (other than interest owing to the Tranche A-1 Lenders)~~ratably, fourth, to pay the principal of the Protective Advances, fifth, to prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, ~~ratably (other than principal owing to the Tranche A-1 Lenders)~~ratably, sixth, to pay an amount to the ~~Administrative~~ Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services ~~to the extent they constitute Secured Obligations~~ and Secured ~~Hedging~~ Swap Obligations, ratably, ~~eleventh~~eighth, to the payment of any other Secured Obligation due to the ~~Agents~~ Agent or any Lender by the Borrower, ~~twelfth~~ninth, as provided for under the Intercreditor Agreement, and ~~thirteenth~~tenth, to the Borrower or as the Borrower shall direct. (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements, Swingline Loans or Protective Advances resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements, Swingline Loans or Protective Advances and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements, Swingline Loans and Protective Advances of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements, Swingline Loans and Protective Advances; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements, Swingline Loans or Protective Advances to any assignee or participant, other than to the Borrower or any subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the ~~Administrative~~ Agent shall have received notice from the Borrower prior to the date on which any payment is due to the ~~Administrative~~ Agent for the account of the Lenders or the applicable Issuing Bank hereunder that the Borrower will not make such payment, the ~~Administrative~~ Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as applicable, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders or the applicable Issuing Bank, as applicable, severally agrees to repay to the ~~Administrative~~ Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the ~~Administrative~~ Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the ~~Administrative~~ Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c), then the ~~Administrative~~ Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the ~~Administrative~~ Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.

Appears in 1 contract

Sources: Credit Agreement (Neiman Marcus Group Inc)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ Each Borrower shall make each payment required to be made by it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to ~~1:30 p.m.~~noon, ~~New York City~~ Chicago time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the ~~Administrative~~ applicable Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent ~~to the applicable account designated to the Borrower by the Administrative Agent~~at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except payments (i) of interest in respect of Canadian Revolving Loans and payments of Letter of Credit participation fees in respect of Canadian Letters of Credit, which shall be made to the Canadian Agent, (ii) to be made directly to ~~the applicable~~ an Issuing Bank or ~~the~~ a Swingline Lender as expressly provided herein and ~~except~~ (iii) that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The ~~Administrative~~ applicable Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension~~. All payments hereunder~~ . (b) Any proceeds of Collateral of the Domestic Loan Parties received by either Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be ~~made in Dollars. Any payment required to be made~~ applied as specified by the ~~Administrative Agent hereunder~~ Borrower Representative), (B) a mandatory prepayment (which shall be ~~deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment~~ applied in accordance with ~~the regulations~~ Section 2.11) or ~~operating procedures of the clearing or settlement system used by the Administrative Agent~~ (C) amounts to ~~make such payment. At all times that~~ be applied from a Collection Account when full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral (which shall be applied in ~~whole~~ accordance with Section 2.10) or ~~in part against the Obligations, on the day of receipt, subject to actual collection.~~ (bii) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents~~ after an Event of Default has occurred and is continuing and ~~all~~ the Administrative Agent so elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders so direct, such funds shall be ~~applied,~~ applied ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the Agents ~~or any~~ and the Issuing ~~Bank~~ Banks from the ~~Borrower~~ Borrowers (other than in connection with Banking Services Obligations or ~~Secured Hedging~~ Swap Obligations), second~~, ratably~~, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower~~ Borrowers (other than in connection with Banking Services or ~~Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders~~Swap Obligations), third, to pay interest due ~~and payable~~ in respect of ~~any Revolving Loans, Swingline Loans~~ Overadvances and ~~any~~ Protective Advances~~, ratably (other than interest owing to the Tranche A-1 Lenders)~~, fourth, to pay the principal of ~~the~~ Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably, sixth, to prepay principal on the Loans (other than the Overadvances, Protective ~~Advances~~Advances and Ex-Im Revolving Loans) and unreimbursed LC ~~Disbursements, ratably~~ Disbursements (other than ~~principal owing to the Tranche A-1 Lenders)~~unreimbursed Ex-Im LC Disbursements) ratably, ~~sixth~~seventh, to pay ~~an amount~~ ratably amounts to the ~~Administrative Agent~~ Agents equal to ~~101.5~~105% of the aggregate undrawn face amount of all outstanding Letters of Credit (other than Ex-Im Letters of Credit) and the aggregate amount of any unpaid LC ~~Exposure on such date~~Disbursements (other than unpaid Ex-Im LC Disbursements), to be held ~~in the LC Collateral Account~~ as cash collateral for such Obligations, ~~seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations),~~ eighth, to ~~pay interest due and payable in respect~~ payment of ~~any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay~~ any amounts owing with respect to Banking Services ~~to the extent they constitute Secured~~ Obligations and ~~Secured Hedging~~ Swap Obligations, ~~ratably, eleventh~~ninth, to the payment of any other Secured Obligation due to ~~the Agents~~ either Agent or any Lender by the ~~Borrower~~Borrowers, ~~twelfth~~tenth, ~~as provided for~~ to prepay principal on the Ex-Im Revolving Loans and unreimbursed Ex-Im LC Disbursements ratably, and -61- (c) Any proceeds of Collateral of the Canadian Loan Parties received by either Agent (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the ~~Intercreditor Agreement~~Loan Documents (which shall be applied as specified by the Borrower Representative), (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11) or (C) amounts to be applied from the Canadian Collateral Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders so direct, such funds shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Agents and the Canadian Issuing Bank from the Canadian Borrower (other than in connection with Banking Services Obligations or Swap Obligations), second, to pay any fees or expense reimbursements then due to the Canadian Lenders from the Canadian Borrower (other than in connection with Banking Services Obligations or Swap Obligations), third, to pay interest due in respect of Canadian Overadvances and Canadian Protective Advances, fourth, to pay the principal of Canadian Overadvances and Canadian Protective Advances, fifth, to pay interest then due and payable on the Canadian Revolving Loans, sixth, to prepay principal on the Canadian Revolving Loans and unreimbursed Canadian LC Disbursements ratably, seventh, to pay an amount to the Canadian Agent equal to 105% of the aggregate undrawn face amount of all outstanding Canadian Letters of Credit and the aggregate amount of any unpaid Canadian LC Disbursements, to be held as cash collateral for such Obligations, eighth, to payment of any amounts owing by the Canadian Loan Parties in respect of Banking Services Obligations and Swap Obligations, and ~~thirteenth~~ninth, to the ~~Borrower~~ payment of any other Canadian Obligations due to either Agent or as any Canadian Lender by the ~~Borrower shall direct~~Canadian Borrower. In no event will any proceeds of Collateral described in this Section 2.18(c) be applied to any Domestic Obligations or Ex-Im Obligations. (cd) Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower Representative, or unless an Event of Default is in existence, neither either Agent nor any Lender shall apply any payment which it receives to any CDOR Rate Loan or any Eurodollar Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or (b) in the event, and only to the extent, that with respect to CDOR Rate Loans, there are no outstanding CP Loans of the same Class, and with respect to Eurodollar Loans, there are no outstanding CBFR Loans or USBR Loans, as applicable, of the same Class and, in any such event, the applicable Borrower shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. (e) At the election of the Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of any Borrower maintained with the Administrative Agent; provided, that no Borrowings of Canadian Revolving Loans, Canadian Swingline Loans, Canadian Overadvances or Canadian Protective Advances may be used to pay any of the Domestic Obligations or the Ex-Im Obligations and no amounts contained in a deposit account of the Canadian Borrower may be applied against any of the Domestic Obligations or the Ex-Im Obligations. The Company hereby irrevocably authorizes (i) the Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such -62- (f) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in Ex-Im Revolving Loans and LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in Ex-Im Revolving Loans and LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and ~~participations in~~ LC ~~Disbursements, Swingline Loans and Protective Advances~~ Disbursements of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in Ex-Im Revolving Loans and LC Disbursements~~, Swingline Loans and Protective Advances~~; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by ~~the~~ any Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in~~ and LC ~~Disbursements, Swingline Loans or Protective Advances~~ Disbursements to any assignee or participant, other than to ~~the~~ such Borrower or any ~~subsidiary~~ Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). ~~The~~ Each Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against ~~the~~ such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of ~~the~~ such Borrower in the amount of such participation. (dg) Unless the Administrative Agent shall have received notice from the Borrower Representative prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders or ~~the applicable~~ an Issuing Bank hereunder that the ~~Borrower~~ Borrowers will not make such payment, the Administrative Agent may assume that the ~~Borrower has~~ Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the applicable Issuing Bank, as ~~applicable~~the case may be, the amount due. In such event, if the ~~Borrower has~~ Borrowers have not in fact made such payment, then each of the Lenders or ~~the applicable~~ such Issuing Bank, as ~~applicable~~the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.amount (eh) If any Lender shall fail to make any payment required to be made by it ~~pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c)~~hereunder, then the ~~Administrative~~ applicable Agent or the Ex-Im Revolving Lender, as applicable, may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by ~~the Administrative Agent~~ such Person for the account of such Lender to satisfy such Lender’s obligations ~~under such Sections~~ hereunder until all such unsatisfied obligations are fully ~~paid~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any such amounts to, any future funding obligations of such Lender hereunder; application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent in its discretion.

Appears in 1 contract

Sources: Credit Agreement

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder and under any other Loan Document (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under Section ~~2.15~~2.14, ~~2.16~~ 2.15 or ~~2.17~~2.16, or otherwise) prior to ~~1:30 p.m.~~12:00 (noon), New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the ~~Administrative~~ Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments (other than (i) Issuing Bank Fees, which shall be paid directly to the Issuing Bank, and (ii) principal of and interest on Swingline Loans, which shall be paid directly to the Swingline Lender except as otherwise provided in Section 2.22(f)) shall be made to the ~~Administrative~~ Agent to the applicable account designated to the Borrower by the ~~Administrative~~ Agent, ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and~~ except that payments pursuant to Sections 2.14, 2.15, ~~2.16, 2.17~~ 2.16 and 9.03 shall be made directly to the Persons entitled thereto. The ~~Administrative~~ Agent shall distribute any such payments received by it it, except as otherwise provided, for the account of any other Person to the appropriate recipient promptly following receipt thereof. If Except as otherwise expressly provided herein, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the ~~Administrative~~ Agent hereunder shall be deemed to have been made by the time required if the ~~Administrative~~ Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the ~~Administrative~~ Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents after an Event of Default has occurred and is continuing and all or any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of the Required Lenders be applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due to the Agents or any Issuing Bank from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders), third, to pay interest due and payable in respect of any Revolving Loans, Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders), fourth, to pay the principal of the Protective Advances, fifth, to prepay principal on the Loans (other than the Protective Advances) and unreimbursed LC Disbursements, ratably (other than principal owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any Revolving Loans owing to the Tranche A-1 Lenders, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventh, to the payment of any other Secured Obligation due to the Agents or any Lender by the Borrower, twelfth, as provided for under the Intercreditor Agreement, and thirteenth, to the Borrower or as the Borrower shall direct[Intentionally Omitted.] (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or ~~participations in LC Disbursements, Swingline Loans or Protective Advances~~ any of its L/C Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and ~~participations in LC Disbursements, Swingline Loans or Protective Advances and~~ accrued interest thereon and L/C Disbursements than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and ~~participations in LC Disbursements, Swingline Loans and Protective Advances~~ L/C Disbursements of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and ~~participations in LC~~ L/C Disbursements~~, Swingline Loans and Protective Advances~~; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or ~~participations in LC Disbursements, Swingline Loans or Protective Advances~~ L/C Disbursements to any assignee or participant, other than to Holdings, the Borrower or any subsidiary ~~or Affiliate~~ thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the ~~Administrative~~ Agent shall have received notice from the Borrower prior to the date on which any payment is due to the ~~Administrative~~ Agent for the account of the Lenders ~~or the applicable Issuing Bank hereunder~~ that the Borrower will not make such payment, the ~~Administrative~~ Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders ~~or the applicable Issuing Bank, as applicable,~~ the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the ~~Administrative~~ Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the ~~Administrative~~ Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the ~~Administrative~~ Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections ~~2.04(b~~2.04(a), ~~2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c~~2.17(c) or 9.03(c), then the ~~Administrative~~ Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the ~~Administrative~~ Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid. (f) Except as otherwise provided herein, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans, each payment of the Commitment Fees or the L/C Participation Fees, each reduction of the Term Loan Commitments or the Revolving Credit Commitments and each conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated pro rata among the Lenders in accordance with their respective applicable Commitments (or, if such Commitments shall have expired or been terminated, in accordance with the respective principal amounts of their outstanding Loans or participations in L/C Disbursements, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole dollar amount

Appears in 1 contract

Sources: Credit Agreement (TransDigm Group INC)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) ~~Unless otherwise specified, the~~ The Borrower shall make each payment required to be made by it hereunder (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under ~~Section 2.15~~Sections 2.12, ~~2.16~~ 2.13 or ~~2.17~~2.14, or otherwise) prior to ~~1:30~~ 3:00 p.m., New York ~~City~~ time, on the date when due, in immediately available funds, without ~~set-~~set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent ~~to the applicable account designated to the Borrower by the Administrative Agent~~at its offices at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ~~except payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and~~ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, except that payments pursuant to Sections ~~2.15~~2.12, ~~2.16~~2.13, ~~2.17~~ 2.14 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in ~~Dollars.~~ dollars. (b) Any ~~payment required to be made~~ proceeds of Collateral received by the Administrative Agent ~~hereunder~~ (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Transaction Documents (which shall be ~~deemed to have been made~~ applied as specified by the ~~time required if the Administrative Agent shall~~Borrower), ~~at or before such time, have taken the necessary steps to make such payment~~ (B) a mandatory cash collateralization of Loans (which shall be applied in accordance with Section 2.08) or (C) amounts to be applied from the ~~regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that~~ Collection Account when full cash dominion is in effect ~~pursuant to Section 2.21(d), solely for purposes~~ as a result of ~~determining~~ the ~~amount~~ occurrence of ~~Loans available for borrowing purposes, checks and cash or other immediately available funds from collections~~ a Trigger Event (but not as a result of ~~items of payment and proceeds of any Collateral~~ a Termination Event) (which shall be applied in ~~whole~~ accordance with the first sentence of Section 2.07(b)) or ~~in part against the Obligations, on the day of receipt, subject to actual collection.~~ (bii) ~~Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents~~ after an a Termination Event ~~of Default~~ has occurred and is continuing and ~~all~~ the Administrative Agent elects or ~~any portion of the Loans shall have been accelerated hereunder pursuant to Section 7.01, shall upon election by the Agents or at the direction of~~ the Required Lenders direct the Administrative Agent to exercise remedies pursuant to Article 7, shall be ~~applied,~~ applied ratably first, ~~to, ratably,~~ to pay any fees, indemnities, or expense reimbursements including amounts then due to the ~~Agents or any Issuing Bank~~ Administrative Agent from the Borrower ~~(other than in connection with Banking Services or Secured Hedging Obligations)~~pursuant to the Transaction Documents, second~~, ratably~~, to pay any fees or expense reimbursements then due to the Term A Lenders from the Borrower ~~(other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing~~ pursuant to the ~~Tranche A-1 Lenders)~~Transaction Documents, third, to pay interest then due and payable ~~in respect of any Revolving~~ on the Term A Loans, ~~Swingline Loans and any Protective Advances, ratably (other than interest owing to the Tranche A-1 Lenders),~~ fourth~~, to pay the principal of the Protective Advances, fifth~~, to prepay principal on the ~~Loans (other than the Protective Advances) and unreimbursed LC Disbursements~~Term A Loans, ~~ratably (other than principal owing~~ fifth, to pay any fees or expense reimbursements then due to the ~~Tranche A-1~~ Term B Lenders or Other Term Lenders), as applicable, from the Borrower pursuant to the Transaction Documents, sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees interest then ~~due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest~~ due and payable ~~in respect of any Revolving~~ on the Term B Loans ~~owing to the Tranche A-1 Lenders~~or Other Term Loans, ~~ratably~~as applicable, ~~ninth~~seventh, to prepay principal ~~owing to the Tranche A-1 Lenders~~ on the Term B Loans ~~and unreimbursed LC Disbursements~~or Other Term Loans, ~~ratably~~as applicable, ~~tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventh~~eighth, to the payment of any other ~~Secured~~ Obligation due to the ~~Agents~~ Administrative Agent or any Lender by the Borrower, ~~twelfth~~ninth, ~~as provided for under~~ to pay the ~~Intercreditor Agreement~~Servicing Fee and tenth the balance, ~~and thirteenth~~if any, after all of the Obligations have been paid in full, to the Borrower or as otherwise required by law. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrower, or unless a Termination Event is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan of a Class, except (A) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or (B) in the event, and only to the extent, that there are no outstanding ABR Loans of the same Class and, in any such event, the Borrower shall ~~direct~~pay the break funding payment required in accordance with Section 2.13. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Obligations in accordance with the terms herein. (c) At the election of the Administrative Agent, all payments of principal, interest, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Transaction Documents, may be paid from the proceeds of Borrowings made hereunder made following a request by the Borrower pursuant to Section 2.03. (d) If any Lender shall, by exercising any right of ~~set-~~set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans ~~and participations in LC Disbursements, Swingline Loans or Protective Advances~~ and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of other Lenders ~~at such time outstanding~~ to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Loans and participations in LC Disbursements, Swingline Loans and Protective Advances~~Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the Borrower or any ~~subsidiary~~ Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (de) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the applicable Issuing Bank~~ hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the ~~Lenders or the applicable Issuing Bank~~Lenders, as ~~applicable~~the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (ef) If any Lender shall fail to make any payment required to be made by it ~~pursuant to Sections 2.04(b), 2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c) or 9.03(c)~~hereunder, then the Administrative Agent may, in its reasonable discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations ~~under such Sections~~ hereunder until all such unsatisfied obligations are fully ~~paid~~paid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any such amounts to, any future funding obligations of such Lender hereunder; application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent in its reasonable discretion.

Appears in 1 contract

Sources: Credit Agreement (YRC Worldwide Inc.)

Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) Unless otherwise specified, the Borrower shall make each payment required to be made by it hereunder (whether of principal, ~~interest, fees~~ interest or ~~reimbursement of LC Disbursements~~fees, or of amounts payable under ~~Section~~ Sections 2.13, 2.14 or 2.15~~, 2.16 or 2.17~~, or otherwise) prior to 1:30 p.m., New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent to the applicable account designated to the Borrower by the Administrative Agent, except ~~payments to be made directly to the applicable Issuing Bank or the Swingline Lender as expressly provided herein and except~~ that payments pursuant to Sections ~~2.15~~2.13, ~~2.16~~2.14, ~~2.17~~ 2.15 and 9.03 ~~shall~~ may at the Borrower's election be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it it, except as otherwise provided, for the account of any other Person to the appropriate recipient promptly following receipt thereof. If Unless otherwise specified, if any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Administrative Agent to make such payment. At all times that full cash dominion is in effect pursuant to Section 2.21(d), solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) Subject in all respects to the provisions of the Intercreditor Agreement, all proceeds of Collateral received by the Agents after an Event of Default has occurred and is continuing and all or any portion of the Loans shall have been accelerated hereunder pursuant to ~~Section 7.01~~Article 7, shall upon election by the Agents or at the direction of the Required Lenders be applied, first, to, ratably, pay any fees, indemnities, or expense reimbursements then due to the ~~Agents or any Issuing Bank from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations)~~Agents, second, ratably, to pay any fees or expense reimbursements then due to the Lenders from the ~~Borrower (other than in connection with Banking Services or Secured Hedging Obligations and other than fees owing to the Tranche A-1 Lenders)~~Borrower, third, to pay interest due and payable in respect of ~~any Revolving Loans, Swingline~~ the Loans and any ~~Protective Advances~~other Secured Obligations, ~~ratably (other than interest owing to the Tranche A-1 Lenders)~~ratably, fourth, to ~~pay~~ (i) payment of that portion of the Obligations constituting unpaid principal of the ~~Protective Advances~~Loans and (ii) payment of breakage, ~~fifth, to prepay principal on the Loans (~~termination and other ~~than the Protective Advances) and unreimbursed LC Disbursements, ratably (other than principal~~ amounts owing to the Tranche A-1 Lenders), sixth, to pay an amount to the Administrative Agent equal to 101.5% of the LC Exposure on such date, to be held in the LC Collateral Account as cash collateral for such Obligations, seventh, ratably, to pay any fees then due to the Tranche A-1 Lenders from the Borrower (other than in connection with Banking Services or Secured Hedging Obligations), eighth, to pay interest due and payable in respect of any ~~Revolving Loans owing~~ Secured Hedging Obligations between any Loan Party, on the one hand, and an Agent or any Lender or any of their Affiliates, on the other hand, to the ~~Tranche A-1 Lenders~~extent such Secured Hedging Obligations are permitted hereunder, ratably, ninth, to prepay principal owing to the Tranche A-1 Lenders on the Loans and unreimbursed LC Disbursements, ratably, tenth, to pay any amounts owing with respect to Banking Services to the extent they constitute Secured Obligations and Secured Hedging Obligations, ratably, eleventhfifth, to the payment of any other Secured Obligation due to the Agents or any Lender (or any Affiliate thereof) by the Borrower, ~~twelfth~~sixth, as provided for under the Intercreditor Agreement, and ~~thirteenth~~seventh, to the Borrower or as the Borrower shall direct. (c) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans ~~and participations in LC Disbursements, Swingline Loans or Protective Advances~~ and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans ~~and participations in LC Disbursements, Swingline Loans and Protective Advances~~ of other Lenders at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective ~~Loans and participations in LC Disbursements, Swingline Loans and Protective Advances~~Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans ~~or participations in LC Disbursements, Swingline Loans or Protective Advances~~ to any assignee or participant, other than to the Borrower or any subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders ~~or the applicable Issuing Bank hereunder~~ that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders ~~or the applicable Issuing Bank, as applicable,~~ the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Lenders ~~or the applicable Issuing Bank, as applicable,~~ severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender ~~or Issuing Bank~~ with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Sections ~~2.04(b~~2.03(a), ~~2.05(b), 2.06(d) or (e), 2.07(b), 2.18(c~~2.16(c) or 9.03(c), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s 's obligations under such Sections until all such unsatisfied obligations are fully paid.

Appears in 1 contract

Sources: Term Loan Credit Agreement (Amscan Holdings Inc)

Common use of Payments Generally; Allocation of Proceeds; Sharing of Set-offs Clause in Contracts