Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Loan and, second, the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to the provisions of Section 2.9; and (iv) mandatory prepayments shall be applied as set forth in Section 2.10. All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable Percentage. As to any other payment, and as to all payments made when an Event of Default has occurred and is continuing, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon the occurrence and during the continuation of an Event of Default, payments shall be applied to amounts then due and payable in the following order: first, to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, to interest on the Swingline Loan; third, to principal payments on the Swingline Loan; fourth, to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, to principal payments on the other Loans and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18, ratably to the aggregate, combined principal balance of the other Loans and outstanding Letter of Credit Obligations; sixth, to all other Obligations, including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid. (b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the Borrower and cause to be paid all Fees, expenses, charges, costs (including insurance premiums in accordance with Section 5.2(e)) and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans hereunder. (c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Samples: Credit Agreement (Centerplate, Inc.)
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Swing Line Loan and, second, to the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to in accordance with the provisions of Section 2.91.3(a); and (iv) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(c) and 1.3(d). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon In the occurrence and during the continuation absence of an Event of Defaulta specific determination by Agent with respect thereto, payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, (2) to interest on the Swingline Swing Line Loan; third, (3) to principal payments on the Swingline Swing Line Loan; fourth, (4) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, unpaid Swap Related Reimbursement Obligations and unpaid swap obligations owing to Lenders other than GE Capital, ratably in proportion to the interest accrued as to each Loan, unpaid Swap Related Reimbursement Obligation or other unpaid swap obligation, as applicable; fifth, (5) to principal payments on the other Loans Loans, unpaid Swap Related Reimbursement Obligations and unpaid swap obligations owing to Lenders other than GE Capital and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of the other Loans Loans, unpaid Swap Related Reimbursement Obligations, other unpaid swap obligation and outstanding Letter of Credit Obligations; sixth, and (6) to all other Obligations, Obligations including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid11.3.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the each Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the Revolving LoanCredit Advances, due and owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time or would cause the aggregate balance of the Revolving Loan and the Swing Line Loan of any Borrower to exceed such Borrower’s separate Borrowing Base after giving effect to such charges or if such charges would cause the aggregate balance of the Revolving Loan and Swing Line Loan to exceed the Aggregate Borrowing Base after giving effect to such charges. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuingcontinuing and the Commitment Termination Date has not occurred, (i) payments consisting of proceeds of Accounts received in the ordinary course of business and not subject to clauses (ii), (iii) and (iv) below shall be applied, first, to the Swingline Swing Line Loan and, second, to the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower RepresentativeBorrower, subject to the provisions of Section 2.91.3(a); and (iv) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(c), 1.3(d) and 1.3(f). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, Borrower and each Borrower other Credit Party hereby irrevocably waives waive the right to direct the application of any and all payments (including monetary proceeds of collections of or realizations upon any Collateral) received from or on behalf of such BorrowerBorrower or any other Credit Party, and Borrower and each Borrower other Credit Party hereby irrevocably agrees agree that the Administrative Agent Requisite Revolving Lenders and the Requisite Lenders shall have the continuing exclusive right to apply any and all such payments against the Obligations of as the Borrowers as Administrative Agent Requisite Revolving Lenders and the Requisite Lenders may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and recordsrecords and agree to be bound by all such payment applications. Upon In the occurrence absence of a specific determination by the Requisite Revolving Lenders and during the continuation of an Event of DefaultRequisite Lenders with respect thereto, payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, (2) to interest on the Swingline Swing Line Loan; third, (3) to principal payments on the Swingline Swing Line Loan; fourth, (4) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, (5) to principal payments on the other Loans and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of the other Loans and outstanding Letter of Credit Obligations; sixth, and (6) to all other Obligations, including any Hedging Termination Value owed by Borrower and/or one or more Secured Guarantors with respect to the Specified Hedging Agreements and expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid11.3.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the Borrower and cause to be paid all Fees, expensesCharges, charges, costs reimbursable expenses (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers Borrower under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail Borrower fails to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Samples: Credit Agreement (RBC Bearings INC)
Application and Allocation of Payments. Any amounts received by Agent or the Lenders (aincluding any voluntary and mandatory prepayments at any time when an Event of Default shall have occurred and be continuing), shall be applied as follows: (i) any proceeds of Revolving Priority Collateral shall be applied: (A) first, to Fees due to the Revolving Lenders and Agent and reimbursable expenses of Agent then due and payable pursuant to any of the Loan Documents until paid in full; (B) second, to interest then due and payable on the Swing Line Loan until paid in full; (C) third, to the principal balance of the Swing Line Loan until the same shall have been paid in full; (D) fourth, to interest then due and payable on the Revolving Credit Advances and unpaid Swap Related Reimbursement Obligations (in an amount up to the amount of the Swap Related Reserve then extant), ratably in proportion to the interest accrued as to each Revolving Credit Advance and such unpaid Swap Related Reimbursement Obligation, as applicable, until paid in full; (E) fifth, to the principal balance of the Revolving Credit Advances and unpaid Swap Related Reimbursement Obligations (in an amount up to the amount of the Swap Related Reserve then extant), ratably to the aggregate, combined principal balance of the Revolving Credit Advances and such unpaid Swap Related Reimbursement Obligations, until paid in full; (F) sixth, to any Letter of Credit Obligations to provide cash collateral therefor in the manner set forth in Annex B; (G) seventh, to Fees due to the Term Lenders until paid in full; (H) eighth, to interest then due and payable on the Term Loan until paid in full, (I) ninth, to the principal balance of the Term Loan until paid in full; (J) tenth, to all other Obligations including, without limitation, all unpaid Swap Related Reimbursement Obligations and expenses of the Lenders to the extent reimbursable under Section 11.3; and (ii) any proceeds of Term Priority Collateral shall be applied: (A) first, to Fees due to the Term Lenders and Agent and reimbursable expenses of Agent then due and payable pursuant to any of the Loan Documents until paid in full; (B) second, to interest then due and payable on the Term Loan; until paid in full, (C) third, to the principal balance of the Term Loan, until paid in full; (D) fourth, to Fees due to the Revolving Lenders and Agent and Agent's expenses reimbursable hereunder until paid in full; (E) fifth, to interest then due and payable on the Swing Line Loan until paid in full; (F) sixth, to the principal balance of the Swing Line Loan until the same shall have been paid in full; (G) seventh, to interest then due and payable on the Revolving Credit Advances until paid in full; (H) eighth, to the principal balance of the Revolving Credit Advances until the same shall have been paid in full; (I) ninth, to any Letter of Credit Obligations to provide cash collateral therefor in the manner set forth in Annex B until all such Letter of Credit Obligations have been fully cash collateralized; and (J) tenth, to all other Obligations including, without limitation, all unpaid Swap Related Reimbursement Obligations and expenses of the Lenders to the extent reimbursable under Section 11.3. So long as no Default or Event of Default has shall have occurred and is continuing, be continuing (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Loan and, second, the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to in accordance with the provisions of Section 2.91.3(a); and (ivii) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(c) and 1.3(d). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an a Default or Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers Borrower as Administrative Agent may deem advisable set forth above notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon the occurrence and during the continuation of an Event of Default, payments shall be applied to amounts then due and payable in the ." The following order: first, to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, to interest on the Swingline Loan; third, to principal payments on the Swingline Loan; fourth, is added to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued Agreement as to each Loan; fifth, to principal payments on the other Loans and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18, ratably to the aggregate, combined principal balance of the other Loans and outstanding Letter of Credit Obligations; sixth, to all other Obligations, including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs 9.1(g):
(g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated Nothing contained in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a)9 shall require the consent of any party for GE Capital to assign any of its rights in respect of any Swap Related Reimbursement Obligation." The second sentence of Section 11.2(c) is hereby amended and restated in its entirety as follows: "Furthermore, no amendment, modification, termination or waiver affecting the rights or duties of Agent or L/C Issuer, or of GE Capital in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid.
(b) The Administrative Agent is authorized toof any Swap Related Reimbursement Obligations, and at its sole election may, charge to the Revolving Loan balance on behalf of the Borrower and cause to be paid all Fees, expenses, charges, costs (including insurance premiums in accordance with Section 5.2(e)) and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers under this Agreement or any of the other Loan Documents if Document, including any release of any Guaranty or Collateral requiring a writing signed by all Lenders, shall be effective unless in writing and signed by Agent or L/C Issuer or GE Capital, as the case may be, in addition to Lenders required hereinabove to take such action." Annex A to the extent Credit Agreement is hereby amended by adding the Borrowers fail to pay promptly any such amounts following defined terms in proper alphabetical order or amending and restating the following defined terms in their entirety, as and when due. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.may be:
Appears in 1 contract
Samples: Credit Agreement (Gottschalks Inc)
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Swing Line Loan and, second, to the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to in accordance with the provisions of Section 2.91.3(a); and (iv) mandatory prepayments shall be applied as set forth in Section 2.101.3(c). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon In all circumstances, after acceleration or maturity of the occurrence Obligations, all payments and during the continuation proceeds of an Event of Default, payments Collateral shall be applied to amounts then due and payable in the following order: first, (1) to reimburse the L/C Issuer for all unreimbursed draws or payments made by it under Letters of Credit; (2) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, (3) to interest on the Swingline Swing Line Loan; third, (4) to principal payments on the Swingline Swing Line Loan; fourth, (5) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other LoansLoans and unpaid Swap Related Reimbursement Obligations, ratably in proportion to the interest accrued as to each LoanLoan and Swap Related Reimbursement Obligation, as applicable; fifth, (6) to principal payments on the other Loans and unpaid Swap Related Reimbursement Obligations and to provide cash collateral for contingent Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of the other Loans Loans, unpaid Swap Related Reimbursement Obligations and outstanding Letter of Credit Obligations; sixth, and (7) to all other Obligations, Obligations including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid11.3.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the each Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Application and Allocation of Payments. (a) So long as no Default or Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Loan and, second, the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iiiii) voluntary prepayments shall be applied as determined by the applicable Borrower and directed by Borrower Representative, subject to the provisions of Section 2.91.3(a); and (iviii) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(b) and (c). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an a Default or Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon The Borrowers acknowledge and agree that, in the occurrence and during the continuation absence of an Event of Defaulta specific determination by Agent with respect thereto, payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s 's expenses reimbursable hereunder; second, (2) to interest on the Swingline US Swing Line Loans and European Swing Line Loans, ratably in proportion to the interest accrued as to each such Loan; third, (3) to principal payments on the Swingline LoanUS Swing Line Loans and European Swing Line Loans; fourth, (4) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, (5) to principal payments on the other Loans and Loans; (6) to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of the other Loans and outstanding Letter of Credit Obligations; sixth, (7) to all other Obligations, including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid11.3.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the applicable US Revolving Loan balance on behalf of the US Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the such US Revolving Loan, owing by the Borrowers US Borrower under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail US Borrower fails to pay promptly any such amounts as and when due. Agent shall use reasonable efforts to provide Borrower Representative with notice prior to charging such amounts but failure to do so shall not effect its rights to so charge. At the Administrative Agent’s 's option and to the extent permitted by law, any charges so made shall constitute part of the applicable US Revolving Loans Loan hereunder.
(c) Except Agent is authorized to, and at its sole election may, charge to the applicable European Revolving Loan balance on behalf of European Borrower and cause to be paid all Fees, expenses, Charges, costs (including insurance premiums in accordance with Section 5.4(a)) and interest and principal, other than principal of such European Revolving Loan, owing by European Borrower under this Agreement or any of the other Loan Documents if and to the extent European Borrower fails to pay promptly any such amounts as required and when due. Agent shall use reasonable efforts to provide Borrower Representative with notice prior to charging such amounts but failure to do so shall not effect its rights to so charge. At Agent's option and to the extent permitted by law, any charges so made shall constitute part of the applicable European Revolving Loan hereunder.
(d) Upon the exercise of any rights and remedies by Agent under any of the Loan Documents with respect to Collateral pledged by any US Credit Party to secure the Obligations of the US Credit Parties after an Event of Default shall have occurred and be continuing, any and all Proceeds received by Agent pursuant to any of the Loan Documents with respect to such Collateral shall be applied and distributed by Agent in the following order: (i) to Fees and expenses of the Agent reimbursable hereunder that have been allocated to the US Credit Parties as determined by Agent; (ii) to interest on the US Revolving Loan and the US Term Loan ratably in proportion to interest accrued thereon; (iii) to principal of the US Revolving Loan and the US Term Loan; (iv) to all other Obligations of the US Credit Parties to the Lenders to the extent reimbursable under Section 2.12 11.3; (v) to interest on the European Revolving Loan and the European Term Loan ratably in proportion to interest accrued thereon; (vi) to principal of the European Revolving Loan and the European Term Loan ratably in proportion to the outstanding principal amounts thereof; (vii) to all other Obligations of the European Credit Parties to the Lenders to the extent reimbursable under Section 11.3; and (viii) to the US Borrower or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
(e) Upon the exercise of any rights and remedies by Agent under any of the Loan Documents with respect to Collateral pledged by any European Credit Party to secure the Obligations of the European Credit Parties after an Event of Default shall have occurred and be continuing, any and all Proceeds received by Agent pursuant to any of the Loan Documents with respect to such Collateral shall be applied and distributed by Agent in the following order: (i) to Fees and expenses of the Agent reimbursable hereunder that have been allocated to the European Credit Parties as determined by Agent; (ii) to interest on the European Revolving Loan and the European Term Loan, ratably in proportion to the accrued interest thereon; (iii) to principal payments on the European Revolving Loan and the European Term Loan, ratably in proportion to the outstanding amounts thereof; (iv) to all other Obligations of the European Lenders to the extent reimbursable under Section 11.3; (v) subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment 5.11 to the extent such European Credit Party has guaranteed or prepayment of principal of any Borrowing, each secured the payment of the US Revolving Loan and the US Term Loan, (x) to interest on the Loans US Revolving Loan and Letter of Credit Obligationsthe US Term Loan, each payment ratably in proportion to the accrued interest thereon, (y) then to the principal of the Commitment Fees or Letter of Credit Participation FeesUS Revolving Loan and the US Term Loan, each reduction ratably in proportion to the outstanding amounts thereof, and (z) then to all other obligations of the Revolving US Credit Commitments Parties to the Lenders to the extent reimbursed under Section 11.3; and each refinancing (vi) to the European Borrower or to whomsoever may be lawfully entitled to receive the same or as a court of any Borrowing with, conversion of any Borrowing competent jurisdiction may direct.
(f) All payments with respect to or continuation on account of any Borrowing as a Borrowing of any Type the US Term Loan, except payments matching specific scheduled payments thereof, shall be allocated (except in made to the case of Swingline Loans) US Term A Loan and US Term B Loan on a 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amountbasis.
Appears in 1 contract
Samples: Credit Agreement (Inverness Medical Innovations Inc)
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Loan and, second, the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iiiii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to in accordance with the provisions of Section 2.91.3(a); and (iviii) mandatory prepayments shall be applied as set forth in Section 2.101.3(b)(vi). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable Percentageapplicable Pro Rata Share. As to any other payment, and Amounts received as to all payments made a result of the exercise of remedies under the Loan Documents when an a Event of Default has occurred and is continuing, each Borrower hereby irrevocably waives continuing or following the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon the occurrence and during the continuation of an Event of Default, payments Termination Date shall be applied to amounts then due and payable in the following order: first, :
(1) to reimburse the L/C Issuer for all unreimbursed draws or payments made by it under Letters of Credit;
(2) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s Agents’ expenses reimbursable hereunder; second, ;
(3) to interest on the Swingline Loan; third, Swing Line Loans;
(4) to principal payments on the Swingline Loan; fourth, Swing Line Loans;
(5) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, ;
(6) to principal payments on the other Loans Loans, to Obligations in respect of Hedging Obligations owed to Lender Counterparties and to provide cash collateral for contingent Letter of Credit Obligations in the manner described in Section 2.18Annex B, Annex C and Annex D, ratably to the aggregate, combined principal balance of the other Loans Loans, such Hedging Obligations and outstanding Letter of Credit Obligations; sixth, ;
(7) to all other Obligations, Obligations including expenses of Lenders to the extent reimbursable under Section 9.411.3; and seventhand
(8) following the Termination Date, the remaining balance thereofto each applicable Credit Party or any other Person lawfully entitled to receive such surplus. Considering each type of Revolving Credit Advance being prepaid separately, if any, any such prepayment shall be returned applied first to Index Rate Loans before application to LIBOR Loans or BA Rate Loans in a manner which minimizes any resulting breakage costs under Section 1.10(b) and (d). Notwithstanding anything to the Borrower Representativecontrary, except in the case where the maturity date any payments applied to Hedging Obligations owing to any Lender Counterparty following an Event of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case Default shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance applied on behalf of the Borrower and cause to be paid all Fees, expenses, charges, costs (including insurance premiums in accordance with Section 5.2(e)) and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each basis to Hedging Obligations owing to all Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amountCounterparties.
Appears in 1 contract
Application and Allocation of Payments. (a) So long as no Default or Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Loan and, second, the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iiiii) voluntary prepayments shall be applied as determined by the applicable Borrower and directed by Borrower Representative, subject to the provisions of Section 2.91.3(a); and (iviii) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(b) and (c). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an a Default or Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon The Borrowers acknowledge and agree that, in the occurrence and during the continuation absence of an Event of Defaulta specific determination by Agent with respect thereto, payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, (2) to interest on the Swingline US Swing Line Loan and European Swing Line Loan, ratably in proportion to the interest accrued as to each such Loan; third, (3) to principal payments on the Swingline US Swing Line Loan and European Swing Line Loan; fourth, (4) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, (5) to principal payments on the other Loans and Loans; (6) to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18, ratably Annex B; (7) to the aggregate, combined principal balance of the other Loans and outstanding Letter of Credit any Eligible Swap Obligations; sixth, and (8) to all other Obligations, including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid11.3.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the applicable US Revolving Loan balance on behalf of the US Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the such US Revolving Loan, owing by the Borrowers US Borrower under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail US Borrower fails to pay promptly any such amounts as and when due. Agent shall use reasonable efforts to provide Borrower Representative with notice prior to charging such amounts but failure to do so shall not effect its rights to so charge. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the applicable US Revolving Loans Loan hereunder.
(c) Except as required under Agent is authorized to, and at its sole election may, charge to the applicable European Revolving Loan balance on behalf of European Borrower and cause to be paid all Fees, expenses, Charges, costs (including insurance premiums in accordance with Section 2.12 5.4(a)) and subject to Section 2.10 interest and except as otherwise expressly provided in this Agreementprincipal, each Borrowing, each payment or prepayment of other than principal of such European Revolving Loan, owing by European Borrower under this Agreement or any Borrowingof the other Loan Documents if and to the extent European Borrower fails to pay promptly any such amounts as and when due. Agent shall use reasonable efforts to provide Borrower Representative with notice prior to charging such amounts but failure to do so shall not effect its rights to so charge. At Agent’s option and to the extent permitted by law, each payment any charges so made shall constitute part of the applicable European Revolving Loan hereunder.
(d) Upon the exercise of any rights and remedies by Agent under any of the Loan Documents with respect to Collateral pledged by any US Credit Party to secure the Obligations of the US Credit Parties after an Event of Default shall have occurred and be continuing, any and all Proceeds received by Agent pursuant to any of the Loan Documents with respect to such Collateral shall be applied and distributed by Agent in the following order: (i) to Fees and expenses of the Agent reimbursable hereunder that have been allocated to the US Credit Parties as determined by Agent; (ii) to interest on the Loans US Swing Line Loan; (iii) to principal of the US Swing Line Loan; (iv) to interest on the US Revolving Loan and Letter the US Term Loan ratably in proportion to interest accrued thereon; (vi) to principal of the US Revolving Loan and the US Term Loan ratably in proportion to the outstanding principal amounts thereof; (vii) to all other Obligations of the US Credit Parties to the Lenders to the extent reimbursable under Section 11.3; (v) to the Eligible Swap Obligations; (vi) to interest on the European Swing Line Loan; (vii) to principal of the European Swing Line Loan; (viii) to interest on the European Revolving Loan and the European Term Loan ratably in proportion to interest accrued thereon; (ix) to principal of the European Revolving Loan and the European Term Loan ratably in proportion to the outstanding principal amounts thereof; (x) to all other Obligations of the European Credit Parties to the Lenders to the extent reimbursable under Section 11.3; and (xi) to the US Borrower or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
(e) Upon the exercise of any rights and remedies by Agent under any of the Loan Documents with respect to Collateral pledged by any European Credit Party to secure the Obligations of the European Credit Parties after an Event of Default shall have occurred and be continuing, each any and all Proceeds received by Agent pursuant to any of the Loan Documents with respect to such Collateral shall be applied and distributed by Agent in the following order: (i) to Fees and expenses of the Agent reimbursable hereunder that have been allocated to the European Credit Parties as determined by Agent; (ii) to interest on the European Swing Line Loan; (iii) to principal of the European Swing Line Loan; (iv) to interest on the European Revolving Loan and the European Term Loan, ratably in proportion to the accrued interest thereon; (v) to principal payments on the European Revolving Loan and the European Term Loan, ratably in proportion to the outstanding amounts thereof; (vi) to all other Obligations of the European Lenders to the extent reimbursable under Section 11.3; (vii) as contemplated by Section 5.11 to the extent such European Credit Party has guaranteed or secured the payment of the Commitment Fees or Letter of Credit Participation FeesUS Swing Line Loan, each reduction the US Revolving Loan and the US Term Loan, (w) to interest on the US Swing Line Loan; (x) to principal of the US Swing Line Loan; (y) to interest on the US Revolving Loan and the US Term Loan, ratably in proportion to the accrued interest thereon, (z) then to the principal of the US Revolving Loan and the US Term Loan, ratably in proportion to the outstanding amounts thereof, (viii) as contemplated by Section 5.11 to the extent such European Credit Commitments Party has guaranteed or secured the payment of the US Swing Line Loan, the US Revolving Loan and each refinancing the US Term Loan, then to all other obligations of any Borrowing with, conversion of any Borrowing the US Credit Parties to the Lenders to the extent reimbursed under Section 11.3; and (xii) to the European Borrower or continuation of any Borrowing to whomsoever may be lawfully entitled to receive the same or as a Borrowing court of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amountcompetent jurisdiction may direct.
Appears in 1 contract
Samples: Credit Agreement (Inverness Medical Innovations Inc)
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Loan and, second, the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iiiii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to in accordance with the provisions of Section 2.91.3(a); and (iviii) mandatory prepayments shall be applied as set forth in Section 2.101.3(c). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable Percentageapplicable Pro Rata Share, except as otherwise provided in Section 1.3(a) and Section 1.3(b) if a Term Lender declines a partial prepayment of the Term Loan or if a partial prepayment is made pursuant to Section 1.3(b)(vii). As to any other payment, and as to all payments made when an Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, Borrower and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent unless expressly stated otherwise in the Loan Account or any other books and records. Upon the occurrence and during the continuation of an Event of Defaultthis Agreement, payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s 's expenses reimbursable hereunder; second, (2) to interest on the Swingline Loan; thirdLoans, unpaid Swap Related Reimbursement Obligations, and unpaid Hedging Obligations of Borrower to principal payments on the Swingline Loan; fourth, a Lender pursuant to the Commitment Fee, the Letter of Credit Participation Fee an interest rate protection agreement entered into in accordance and interest on the other Loanssolely to comply with Section 5.10 with any Lender, ratably in proportion to the interest accrued as to each Loan, unpaid Swap Related Reimbursement Obligations, and unpaid Hedging Obligations of Borrower to a Lender pursuant to an interest rate protection agreement entered into in accordance and solely to comply with Section 5.10 with any Lender, as applicable; fifth, (3) to principal payments on the other Loans Loans, unpaid Swap Related Reimbursement Obligations, and unpaid Hedging Obligations of Borrower to provide cash collateral for Letter of Credit Obligations a Lender pursuant to an interest rate protection agreement entered into in the manner described in accordance and solely to comply with Section 2.185.10 with any Lender, ratably in proportion to the aggregate, combined outstanding principal balance of the other Loans each Loan, unpaid Swap Related Reimbursement Obligations and outstanding Letter Hedging Obligations of Credit ObligationsBorrower to a Lender pursuant to an interest rate protection agreement entered into in accordance and solely to comply with Section 5.10 with any Lender, as applicable; sixth, and (4) to all other Obligations, Obligations including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid11.3.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers Borrower under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail Borrower fails to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time. At the Administrative Agent’s 's option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Samples: Credit Agreement (Otelco Inc.)
Application and Allocation of Payments. (a) So The Administrative Agent shall, apply all payments in respect of any Obligations and all proceeds of the Collateral as follows:
(i) except as provided in Section 2.13(j) and in clause (iii) of this Section 2.19(a), with respect to Revolving Priority Collateral and Proceeds thereof and payments made using Revolving Priority Collateral and Proceeds thereof (other than payments made using proceeds of Revolving Credit Loans), (1) first, ratably to pay the Obligations in respect of any fees (including any fees or charges assessed by the Issuing Lender), expense reimbursements, indemnities and other amounts then due to the Pre-Petition Agents, Agents or the Issuing Lender until paid in full; (2) second, ratably to pay the Obligations in respect of any fees (including Letter of Credit fees payable in connection with any Letters of Credit, but excluding any Applicable Prepayment Premium), expense reimbursements and indemnities then due to the Revolving Credit Lenders until paid in full; (3) third, to pay interest due in respect of the Collateral Agent Advances then due to the Collateral Agent until paid in full; (4) fourth, to pay principal of the Collateral Agent Advances then due to the Collateral Agent until paid in full; (5) fifth, (A) ratably to pay the Pre-Petition Revolving Loan Obligations until paid in full in cash (excluding any Applicable Prepayment Premium), and thereafter (B) to pay interest due in respect of the Swing Line Loans to the Swing Line Lender until paid in full; (6) sixth, to pay principal of the Swing Line Loans to the Swing Line Lender until paid in full; (7) seventh, ratably to pay interest due in respect of the Revolving Credit Loans (including any Reinstated Pre-Petition Revolving Loan Obligations) and unreimbursed L/C Disbursements then due to the Revolving Credit Lenders until paid in full; (8) eighth, ratably to pay (x) principal of the Revolving Credit Loans (including any Reinstated Pre-Petition Revolving Loan Obligations) then due to the Revolving Credit Lenders until paid in full, (y) unreimbursed L/C Disbursements to the Issuing Lender and/or the Revolving Credit Lenders, as applicable, until paid in full (or, to the extent such reimbursement obligations in respect of Letters of Credit are contingent, to provide cash collateral in an amount equal to 105% of the Letter of Credit Usage to the Administrative Agent for the benefit of the Issuing Lender), and (z) to the Administrative Agent, for the benefit of the Bank Product Providers, to be held as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default; (9) ninth, ratably to pay the Pre-Petition Term Loan Obligations in respect of any fees (excluding any Applicable Prepayment Premium), expense reimbursements and indemnities then due to the Pre-Petition Term Loan Lenders until paid in full; (10) tenth, ratably to pay interest due in respect of the Pre-Petition Term Loan Obligations until paid in full; (11) eleventh, ratably to pay principal of the Pre-Petition Term Loan Obligations until paid in full; (12) twelfth, ratably to pay the Obligations in respect of any fees, expense reimbursements and indemnities then due to the Term Loan Lenders until paid in full; (13) thirteenth, ratably to pay interest due in respect of the Term Loans until paid in full; (14) fourteenth, ratably to pay principal of the Term Loans (including the outstanding Term Loan B PIK Amount) until paid in full; (15) fifteenth, to the Administrative Agent, to be held by it, for the benefit of the Bank Product Providers, as cash collateral in an amount determined by the Administrative Agent in its Permitted Discretion as the amount necessary to secure the Loan Parties’ Obligations in respect of the then outstanding Bank Products; (16) sixteenth, ratably to pay any Applicable Prepayment Premium then due and payable in respect of the Pre-Petition Revolving Credit Facility until paid in full; (17) seventeenth, ratably to pay any Applicable Prepayment Premium then due and payable in respect of the Pre-Petition Term Loan Obligations until paid in full; and (18) eighteenth, to the ratable payment of all other Obligations then due and payable until paid in full; provided, that in the absence of an Event of Default that has occurred and is continuing, any payments in respect of the Obligations and all proceeds of Revolving Priority Collateral shall only be applied to the items described in subclauses (4), (5)(A), (6), (8), (11), (14) and (15) in the order in which they appear above in this clause (i);
(ii) except as provided in Section 2.13(j) and in clause (iii) of this Section 2.19(a), with respect to Term Priority Collateral and Proceeds thereof and payments made using Term Priority Collateral and Proceeds thereof, (1) first, ratably to pay the Obligations in respect of any fees (including any fees or charges assessed by the Issuing Lender), expense reimbursements, indemnities and other amounts then due to the Pre-Petition Agents, Agents or the Issuing Lender, until paid in full; (2) second, ratably to pay the Pre-Petition Term Loan Obligations in respect of any fees (excluding any Applicable Prepayment Premium), expense reimbursements and indemnities then due to the Pre-Petition Term Loan Lenders until paid in full; (3) third, to pay interest due in respect of the Collateral Agent Advances then due to the Collateral Agent until paid in full; (4) fourth, to pay principal of the Collateral Agent Advances then due to the Collateral Agent until paid in full; (5) fifth, ratably to pay interest due in respect of the Pre-Petition Term Loan Obligations until paid in full; (6) sixth, ratably to pay principal of the Pre-Petition Term Loan Obligations until paid in full; (7) seventh, ratably to pay the Obligations in respect of any fees, expense reimbursements and indemnities then due to the Term Loan Lenders until paid in full; (8) eighth, ratably to pay interest due in respect of the Term Loans until paid in full; (9) ninth, ratably to pay principal of the Term Loans (including the outstanding Term Loan B PIK Amount) until paid in full; (10) tenth, (A) ratably to pay the Pre-Petition Revolving Loan Obligations until paid in full in cash (excluding any Applicable Prepayment Premium) and thereafter (B) ratably to pay the Obligations in respect of any fees (including Letter of Credit fees payable in connection with any Letters of Credit, but excluding any Applicable Prepayment Premium), expense reimbursements and indemnities then due to the Revolving Credit Lenders until paid in full; (11) eleventh, ratably to pay interest due in respect of the Swing Line Loans to the Swing Line Lender until paid in full; (12) twelfth, ratably to pay principal of the Swing Line Loans to the Swing Line Lender until paid in full; (13) thirteenth, ratably to pay interest due in respect of the Revolving Credit Loans (including any Reinstated Pre-Petition Revolving Loan Obligations) and unreimbursed L/C Disbursements then due to the Revolving Credit Lenders until paid in full; (14) fourteenth, ratably to pay (x) principal of the Revolving Credit Loans (including any Reinstated Pre-Petition Revolving Loan Obligations) then due to the Revolving Credit Lenders until paid in full, (y) unreimbursed L/C Disbursements to the Issuing Lender and/or the Revolving Credit Lenders, as applicable, until paid in full (or, to the extent such reimbursement obligations in respect of Letters of Credit are contingent, to provide cash collateral in an amount equal to 105% of the Letter of Credit Usage to the Administrative Agent for the benefit of the Issuing Lender), and (z) to the Administrative Agent, for the benefit of the Bank Product Providers, to be held as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default; (15) fifteenth, ratably to pay any Applicable Prepayment Premium then due and payable in respect of the Pre-Petition Term Loan Obligations until paid in full; (16) sixteenth, ratably to pay any Applicable Prepayment Premium then due and payable in respect of the Pre-Petition Revolving Credit Facility until paid in full; (17) seventeenth, to the ratable payment of all other Obligations (other than Bank Product Obligations) then due and payable until paid in full; and (18) eighteenth, to the Administrative Agent, to be held by it, for the benefit of the Bank Product Providers, as cash collateral in an amount determined by the Administrative Agent in its Permitted Discretion as the amount necessary to secure the Loan Parties’ Obligations in respect of the then outstanding Bank Products; provided, that in the absence of an Event of Default that has occurred and is continuing, any payments in respect of the Obligations and all proceeds of Term Priority Collateral shall only be applied to the items described in subclauses (4), (6), (9), (10)(A), (12), and (14) in the order in which they appear above in this clause (ii); and
(iii) with respect to the Proceeds of any Asset Sale of all or substantially all of the assets or any Asset Sale pursuant to Section 6.17 or Capital Stock of any Person or any Recovery Event or any Extraordinary Receipt which Asset Sale or Recovery Event or Extraordinary Receipt includes both (x) Revolving Priority Collateral and (y) Term Priority Collateral, then, except as otherwise provided in Section 2.13(j), such Proceeds and payments using such Proceeds shall be applied as follows: (1) first, ratably to pay the Obligations in respect of any fees (including any fees or charges assessed by the Issuing Lender), expense reimbursements, indemnities and other amounts then due to the Pre-Petition Agents, Agents or the Issuing Lender until paid in full; (2) second, ratably to pay interest due in respect of the Collateral Agent Advances then due to the Collateral Agent until paid in full; (3) third, ratably to pay principal of the Collateral Agent Advances then due to the Collateral Agent until paid in full; (4) fourth, an amount equal to the net book value of the Revolving Priority Borrowing Base Collateral that is the subject of such Asset Sale or Recovery Event (including any Revolving Priority Borrowing Base Collateral owned by a Person whose Capital Stock is the subject of such Asset Sale) (determined at the time of such Asset Sale or Recovery Event) or any Extraordinary Receipt constituting Revolving Priority Collateral shall be applied in accordance with (x) first, subclause (2) of clause (i) above, and (y) second, subclauses (5) through (18) of clause (i) above, in each case, until paid in full; and (5) fifth, the remaining Proceeds shall be applied in accordance with (x) first, subclause (2) of clause (ii) above, and (y) second, to subclauses (5) through (18) of clause (ii) above, in each case, until paid in full; provided, that in the absence of an Event of Default that has occurred and is continuing, any payments in respect of the Obligations and all proceeds of Collateral shall only be applied as follows: (x) first, to the item described in subclause (3) in this clause (iii), (y) second, an amount equal to the net book value of the Revolving Priority Borrowing Base Collateral that is the subject of such Asset Sale or Recovery Event (including any Revolving Priority Borrowing Base Collateral owned by a Person whose Capital Stock is the subject of such Asset Sale) (determined at the time of such Asset Sale or Recovery Event) or any Extraordinary Receipt constituting Revolving Priority Collateral shall be applied to the items described in subclauses (4), (5)(A), (6), (8), (11), (14) and (15) in the order in which they appear in clause (i) above, and (z) third, the remaining Proceeds shall be applied to the items described in subclauses (4), (6), (9), (10)(A), (12), and (14) in the order in which they appear in clause (ii) above.
(b) Except as otherwise expressly provided in this Agreement, the Bankruptcy Court Orders or the Security Documents with respect to money to be held by the Collateral Agent for a specific purpose, the Collateral Agent shall promptly forward to the Administrative Agent any proceeds of Collateral received by the Collateral Agent to be applied in accordance with the terms of this Agreement.
(c) The Lenders and the Borrower hereby authorize the Administrative Agent to, and the Administrative Agent may, from time to time, charge the Loan Account of the Borrower with any amount due and payable by the Loan Parties under any Loan Document. Each of the Lenders and the Borrower agrees that the Administrative Agent shall have the right to make such charges whether or not any Default or Event of Default shall have occurred and be continuing or whether any of the conditions precedent in Sections 5.1, 5.2 or 5.3 have been satisfied. Any amount charged to the Loan Account of the Borrower shall be deemed a Revolving Credit Loan hereunder made by the Revolving Credit Lenders to the Borrower, funded by the Administrative Agent on behalf of the Revolving Credit Lenders and subject to Section 2.5 of this Agreement. The Lenders and the Borrower confirm that any charges which the Administrative Agent may so make to the Loan Account of the Borrower as herein provided will be made as an accommodation to the Borrower and at the Administrative Agent’s sole discretion, provided, that, (i) so long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Loan and, second, the Revolving Loan; continuing or would result therefrom and (ii) payments matching specific scheduled payments to the extent that such charge does not exceed the then current Availability, the Administrative Agent shall from time to time upon the written request of the Collateral Agent, charge the Loan Account of the Borrower with any amount due and payable under any Loan Document.
(d) Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any commitment fee or Letter of Credit fee (except as otherwise provided in Section 2.10), and any reduction of the Commitments of the Lenders, shall be made pro rata according to the respective Pro Rata Shares of the relevant Lenders. Each payment in respect of fees or expenses payable to the Lenders hereunder shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject amounts of such obligations owing to the provisions of Section 2.9; and (iv) mandatory prepayments shall be applied as set forth in Section 2.10. All payments and prepayments applied to a particular Loan shall be applied ratably applicable Lenders pro rata according to the portion thereof held by each Lender as determined by its Applicable Percentage. As to any other payment, and as to all payments made when an Event of Default has occurred and is continuing, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon the occurrence and during the continuation of an Event of Default, payments shall be applied to respective amounts then due and payable in the following order: first, to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, to interest on the Swingline Loan; third, to principal payments on the Swingline Loan; fourth, owing to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to applicable Lenders.
(e) Each payment (including each Loan; fifth, to principal payments on the other Loans and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18, ratably to the aggregate, combined principal balance of the other Loans and outstanding Letter of Credit Obligations; sixth, to all other Obligations, including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (gprepayment) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loans B outstanding under the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the Borrower and cause to be paid all Fees, expenses, charges, costs (including insurance premiums in accordance with Section 5.2(e)) B Facility and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type thereon shall be allocated (except in among the case of Swingline Loans) Term Loan B Lenders holding such Term Loans B pro rata among based on 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage amount of such Borrowing Term Loans B held by such Term Loan B Lenders. Amounts prepaid on account of the Term Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amountB may not be reborrowed.
Appears in 1 contract
Samples: Debt and Security Agreement (Pope & Talbot Inc /De/)
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts and Short-Term Rentals received by Agent in the ordinary course of business shall be applied, first, to the Swingline Swing Line Loan and, second, to the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to in accordance with the provisions of Section 2.9Sections 1.5(a) and 1.5(e); and (iv) mandatory prepayments shall be applied as set forth in Section 2.10. Sections 1.5(c), 1.5(d), 1.5(e) and 1.5(f);
(b) All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable Percentage. Pro Rata Share.
(c) As to any other paymentpayment not referred to in paragraph (a) or (b) of this Section 1.12, and as to all payments made when an Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower Borrowers hereby irrevocably waives waive the right to direct the application of any and all payments received from or on behalf of such BorrowerBorrowers, and each Borrower Borrowers hereby irrevocably agrees agree that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon .
(d) In the occurrence and during the continuation absence of an Event of Defaulta specific determination by Agent with respect thereto, payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, (2) to interest on the Swingline Swing Line Loan; third, (3) to principal payments on the Swingline Swing Line Loan; fourth, (4) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other LoansLoans and unpaid Swap Related Reimbursement Obligations, ratably in proportion to the interest accrued as to each LoanLoan and unpaid Swap Related Reimbursement Obligation, as applicable; fifth, (5) to principal payments on the other Loans and unpaid Swap Related Reimbursement Obligations and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.186.3, ratably to the aggregate, combined principal balance of the other Loans Loans, unpaid Swap Related Reimbursement Obligations and outstanding Letter of Credit Obligations; sixth, and (6) to all other Obligations, Obligations including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid9.1.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the Borrower and cause to be paid all Fees, expenses, charges, costs (including insurance premiums in accordance with Section 5.2(e)) and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Loan andSwing Line Loan, second, the Revolving LoanLoan (other than the Seasonal Advances), and third, the Seasonal Advances; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to in accordance with the provisions of Section 2.91.3(a); and (iviii) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(c) and 1.3(d). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon the occurrence and during the continuation of an Event of Default, Such payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, (2) to interest on the Swingline Swing Line Loan; third, (3) to principal payments on the Swingline Swing Line Loan; fourth, (4) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, (5) to principal payments on the other Loans and any Obligations under any Secured Rate Contract and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of the other Loans Loans, Obligations under any Secured Rate Contract and outstanding Letter of Credit Obligations; sixth, and (6) to all other Obligations, including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the 11.3. After all Obligations have been accelerated pursuant paid in full, Agent shall apply payments to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and repay any Obligations remain outstanding. Each prepayment of Revolving Loans (Indebtedness outstanding under Permitted Hedge Agreements to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied that such Indebtedness is secured by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaidCollateral as permitted hereunder.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the each Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time; provided, that, such charges shall not, in any event, cause the sum of the aggregate Revolving Loan plus the aggregate Swing Line Loan to exceed the Maximum Amount. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Loan and, second, the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iiiii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to in accordance with the provisions of Section 2.91.3(a); and (iviii) mandatory prepayments shall be applied as set forth in Section 2.101.3(b)(vi). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable Percentageapplicable Pro Rata Share. As to any other payment, and Amounts received as to all payments made a result of the exercise of remedies under the Loan Documents when an a Event of Default has occurred and is continuing, each Borrower hereby irrevocably waives continuing or following the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon the occurrence and during the continuation of an Event of Default, payments Termination Date shall be applied to amounts then due and payable in the following order: first, :
(1) to reimburse the L/C Issuer for all unreimbursed draws or payments made by it under Letters of Credit;
(2) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s Agents’ expenses reimbursable hereunder; second, ;
(3) to interest on the Swingline Loan; third, Swing Line Loans;
(4) to principal payments on the Swingline Loan; fourth, Swing Line Loans;
(5) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, ;
(6) to principal payments on the other Loans Loans, to Obligations in respect of Hedging Obligations owed to Lender Counterparties and to provide cash collateral for contingent Letter of Credit Obligations in the manner described in Section 2.18Annex B, Annex C and Annex D, ratably to the aggregate, combined principal balance of the other Loans Loans, such Hedging Obligations and outstanding Letter of Credit Obligations; sixth, ;
(7) to all other Obligations, Obligations including expenses of Lenders to the extent reimbursable under Section 9.411.3; and seventhand
(8) following the Termination Date, the remaining balance thereofto each applicable Credit Party or any other Person lawfully entitled to receive such surplus. Considering each type of Revolving Credit Advance being prepaid separately, if any, any such prepayment shall be returned applied first to Index Rate Loans before application to LIBOR Loans or BA Rate Loans in a manner which minimizes any resulting breakage costs under Section 1.10(b) and (d). Notwithstanding anything to the Borrower Representativecontrary, except in the case where the maturity date any payments applied to Hedging Obligations owing to any Lender Counterparty following an Event of the Default shall be applied on a pro rata basis to Hedging Obligations have been accelerated pursuant owing to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) all Lender Counterparties. The provisions of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a)1.8 shall not be construed to apply to any payment obtained by any Lender as consideration for the assignment or sale of a participation in any of its Term Loans or other Obligations owed to it (including, in each case shall be accompanied by the corresponding Prepayment Fee without limitation, pursuant to Section 2.5(d) determined with respect to the amount so prepaid.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the Borrower and cause to be paid all Fees, expenses, charges, costs (including insurance premiums in accordance with Section 5.2(e9.1(a)(ii)) and or payments of interest and principal, other than principal of the Revolving Loan, owing made by the Borrowers under this Agreement or any of the other Loan Documents if and a Borrower to the extent the Borrowers fail to pay promptly any such amounts as and when due. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans hereunder.
(c) Except as required under Section 2.12 and subject an assigning Lender pursuant to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable9.1(a)(ii)(F). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Application and Allocation of Payments. (a) So long as no Default or Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Loan and, secondapplied to, the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to in accordance with the provisions of Section 2.91.3(a); and (iviii) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(c) and 1.3(d). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an a Default or Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon the occurrence and during the continuation of an Event of Default, payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, (2) to interest on the Swingline LoanRevolving Loans; third, (3) to principal payments on the Swingline Loan; fourth, to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, to principal payments on the other Revolving Loans and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of the other Revolving Loans and outstanding Letter of Credit Obligations; sixth, (4) to all other Obligations (other than Rate Protection Agreements and Swap Related Reimbursement Obligations), including expenses of to Lenders to the extent reimbursable under Section 9.411.3, and to payments under the Canadian Guaranty; and seventh, the remaining balance thereof, if any, shall be returned (5) to Rate Protection Agreements and unpaid Swap Related Reimbursement Obligations ratably in proportion to the Borrower Representativeaggregate amounts owed as to each Rate Protection Agreement and unpaid Swap Related Reimbursement Obligation, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaidas applicable.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the each Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time or would cause the balance of the Revolving Loan to any Borrower to exceed such Borrower’s separate Borrowing Base after giving effect to such charges. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Application and Allocation of Payments. (a) So long Section 2.19(a)(ii)(A) of the Credit Agreement is hereby amended by deleting it in its entirety and by substituting therefor as no Event follows:
(A) except as provided in clause (C) of Default has occurred this Section 2.19(a)(ii), with respect to Revolving Priority Collateral and is continuingProceeds thereof and payments made using Revolving Priority Collateral and Proceeds thereof (other than payments made using proceeds of Revolving Credit Loans), (i1) payments consisting first, ratably to pay the Obligations in respect of proceeds any fees (including any fees or charges assessed by the Issuing Lender), expense reimbursements, indemnities and other amounts then due to the Agents or the Issuing Lender until paid in full; (2) second, ratably to pay the Obligations in respect of Accounts received any fees (including Letter of Credit fees payable in connection with any Letters of Credit, but excluding any Applicable Prepayment Premium), expense reimbursements and indemnities then due to the ordinary course Revolving Credit Lenders until paid in full; (3) third, to pay interest due in respect of business shall be appliedthe Collateral Agent Advances then due to the Collateral Agent until paid in full; (4) fourth, firstto pay principal of the Collateral Agent Advances then due to the Collateral Agent until paid in full; (5) fifth, to pay interest due in respect of the Swing Line Loans to the Swing Line Lender until paid in full; (6) sixth, to pay principal of the Swing Line Loans to the Swing Line Lender until paid in full; (7) seventh, ratably to pay interest due in respect of the Revolving Credit Loans and unreimbursed L/C Disbursements then due to the Revolving Credit Lenders until paid in full; (8) eighth, ratably to pay (x) principal of the Revolving Credit Loans then due to the Revolving Credit Lenders until paid in full, (y) unreimbursed L/C Disbursements to the Issuing Lender and/or the Revolving Credit Lenders, as applicable, until paid in full (or, to the Swingline Loan andextent such reimbursement obligations in respect of Letters of Credit are contingent, second, to provide cash collateral in an amount equal to 105% of the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied Letter of Credit Usage to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to the provisions of Section 2.9; and (iv) mandatory prepayments shall be applied as set forth in Section 2.10. All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable Percentage. As to any other payment, and as to all payments made when an Event of Default has occurred and is continuing, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have for the continuing exclusive right benefit of the Issuing Lender), and (z) to apply any the Administrative Agent, for the benefit of the Bank Product Providers, to be held as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and all such payments against not in contemplation of, the subject Event of Default; (9) ninth, ratably to pay the Obligations in respect of any fees (excluding any Applicable Prepayment Premium), expense reimbursements and indemnities then due to the Term Loan Lenders until paid in full; (10) tenth, ratably to pay interest due in respect of the Borrowers Term Loans until paid in full; (11) eleventh, ratably to pay principal of the Term Loans until paid in full; (12) twelfth, to the Administrative Agent, to be held by it, for the benefit of the Bank Product Providers, as Administrative Agent may deem advisable notwithstanding any previous entry cash collateral in an amount determined by the Administrative Agent in its Permitted Discretion as the amount necessary to secure the Loan Account or Parties’ Obligations in respect of the then outstanding Bank Products; (13) thirteenth, ratably to pay any other books and records. Upon the occurrence and during the continuation of an Event of Default, payments shall be applied to amounts Applicable Prepayment Premium then due and payable in respect of the following orderRevolving Credit Facility until paid in full; (14) fourteenth, ratably to pay any Applicable Prepayment Premium then due and payable in respect of the Term Loans until paid in full; and (15) fifteenth, to the ratable payment of all other Obligations then due and payable until paid in full;”
(b) Section 2.19(a)(ii)(B) of the Credit Agreement is hereby amended by deleting it in its entirety and by substituting therefor as follows: “(B) except as provided in clause (C) of this Section 2.19(a)(ii), with respect to Term Priority Collateral and Proceeds thereof and payments made using Term Priority Collateral and Proceeds thereof, (1) first, ratably to Fees pay the Obligations in respect of any fees (including any fees or charges assessed by the Issuing Lender), expense reimbursements, indemnities and other amounts then due to the Agents or the Issuing Lender, until paid in full; (2) second, ratably to pay the Obligations in respect of any fees (excluding any Applicable Prepayment Premium), expense reimbursements and indemnities then due to the Commitment Fee and Term Loan Lenders until paid in full; (3) third, to pay interest due in respect of the Collateral Agent Advances then due to the Collateral Agent until paid in full; (4) fourth, to pay principal of the Collateral Agent Advances then due to the Collateral Agent until paid in full; (5) fifth, ratably to pay interest due in respect of the Term Loans until paid in full; (6) sixth, ratably to pay principal of the Term Loans until paid in full; (7) seventh, ratably to pay the Obligations in respect of any fees (including Letter of Credit Participation Feesfees payable in connection with any Letters of Credit, but excluding any Applicable Prepayment Premium), expense reimbursements and indemnities then due to the Administrative Agent’s expenses reimbursable hereunderRevolving Credit Lenders until paid in full; second(8) eighth, ratably to pay interest on due in respect of the Swingline LoanSwing Line Loans to the Swing Line Lender until paid in full; third(9) ninth, ratably to pay principal payments on of the Swingline LoanSwing Line Loans to the Swing Line Lender until paid in full; fourth(10) tenth, ratably to pay interest due in respect of the Revolving Credit Loans and unreimbursed L/C Disbursements then due to the Revolving Credit Lenders until paid in full; (11) eleventh, ratably to pay (x) principal of the Revolving Credit Loans then due to the Revolving Credit Lenders until paid in full, (y) unreimbursed L/C Disbursements to the Issuing Lender and/or the Revolving Credit Lenders, as applicable, until paid in full (or, to the Commitment Feeextent such reimbursement obligations in respect of Letters of Credit are contingent, to provide cash collateral in an amount equal to 105% of the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion Usage to the interest accrued as Administrative Agent for the benefit of the Issuing Lender), and (z) to each Loan; fifththe Administrative Agent, for the benefit of the Bank Product Providers, to principal payments on the other Loans and to provide be held as cash collateral for Letter in an amount up to the amount of Credit Obligations the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the manner described in Section 2.18subject Event of Default; (12) twelfth, ratably to the aggregate, combined principal balance of the other Loans pay any Applicable Prepayment Premium then due and outstanding Letter of Credit Obligations; sixth, to all other Obligations, including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except payable in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment respect of the Term Loan after acceleration of the maturity date thereof applied pursuant Loans until paid in full; (13) thirteenth, ratably to this Section 2.14(a), pay any Applicable Prepayment Premium then due and payable in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the Borrower and cause to be paid all Fees, expenses, charges, costs (including insurance premiums in accordance with Section 5.2(e)) and interest and principal, other than principal of the Revolving LoanCredit Facility until paid in full; (14) fourteenth, owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail ratable payment of all other Obligations (other than Bank Product Obligations) then due and payable until paid in full; and (15) fifteenth, to pay promptly any such amounts as and when due. At the Administrative Agent’s option and , to be held by it, for the extent permitted by law, any charges so made shall constitute part benefit of the Revolving Loans hereunder.Bank Product Providers, as cash collateral in an amount determined by the Administrative Agent in its Permitted Discretion as the amount necessary to secure the Loan Parties’ Obligations in respect of the then outstanding Bank Products; and”
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment 2.19(a)(ii)(C) of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, Agreement is hereby amended by deleting it in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.entirety and by substituting therefor as follows:
Appears in 1 contract
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Swing Line Loan and, second, to the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to in accordance with the provisions of Section 2.91.3(a); and (iviii) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(c) and 1.3(d). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower Borrower, subject to the terms of the Intercreditor Agreement, hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that Agent shall, subject to the Administrative Agent shall terms of the Intercreditor Agreement, have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon In the occurrence and during the continuation absence of an Event of Defaulta specific determination by Agent with respect thereto, payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, (2) to interest on the Swingline Swing Line Loan; third, (3) to principal payments on the Swingline Swing Line Loan; fourth, (4) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, (5) to principal payments on the other Loans and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of the other Loans and outstanding Letter of Credit Obligations; sixth, and (6) to all other Obligations, Obligations including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding11.3. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers Borrower under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail Borrower fails to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Samples: Credit Agreement (BRPP LLC)
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, applied to the Swingline Loan and, second, the Revolving Loan, first to any outstanding Inventory Revolving Credit Advances until paid in full and then to any outstanding A/R Revolving Credit Advances; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to the provisions of Section 2.9Revolving Loan, first to any outstanding Inventory Revolving Credit Advances until paid in full and then to any outstanding A/R Revolving Credit Advances; and (iv) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(c) and 1.3(d). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon In the occurrence and during the continuation absence of an Event of Defaulta specific determination by Agent with respect thereto, payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, (2) to interest on the Swingline Loan; third, to principal payments on the Swingline Loan; fourth, to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, (3) to principal payments on the other Loans and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of the other Loans and outstanding Letter of Credit Obligations; sixth, and (4) to all other Obligations, including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid11.3.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the each Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time after giving effect to such charges. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Samples: Credit Agreement (Gateway Inc)
Application and Allocation of Payments. (a) So long as no Default or Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Swing Line Loan and, second, the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to the provisions of Section 2.91.3(a); and (iviii) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(c) and 1.3(d). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an a Default or Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon In the occurrence and during the continuation absence of an Event of Defaulta specific determination by Agent with respect thereto, payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, (2) to interest on the Swingline Swing Line Loan; third, (3) to principal payments on the Swingline Swing Line Loan; fourth, (4) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, (5) to principal payments on the other Loans and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of the other Loans and outstanding Letter of Credit Obligations; sixth, and (6) to all other Obligations, including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid11.3.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the each Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the Revolving Loan, owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Samples: Credit Agreement (Amedisys Inc)
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Swing Line Loan and, second, to the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to the provisions of Section 2.91.3(a); and (iviii) mandatory prepayments shall be applied as set forth in Section 2.10. All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable Percentage1.3. As to any other payment, and as to all payments made when an Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon In the occurrence and during the continuation absence of an Event of Defaulta specific determination by Agent with respect thereto, payments from any Borrower shall be applied to amounts then due and payable in the following order: firstFIRST, to Fees (excluding and reimbursable expenses then due and payable to Agent pursuant to any of the Commitment Fee Loan Documents; SECOND, to Fees and any other fees and reimbursable expenses of Lenders then due and payable to Lenders pursuant to any of the Loan Documents; THIRD, to interest then due and payable on the Swing Line Loan; FOURTH, to the principal balance of the Swing Line Loan until the same has been repaid in full; FIFTH, to interest then due and payable on the Revolving Credit Advances; SIXTH, to the outstanding principal balance of the Revolving Credit Advances until the same has been paid in full; SEVENTH, to any Letter of Credit Participation Fees)Obligations, and the Administrative Agent’s expenses reimbursable hereunder; second, to interest on the Swingline Loan; third, to principal payments on the Swingline Loan; fourth, to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, to principal payments on the other Loans and to provide cash collateral for therefor in the manner set forth in Annex B; and LAST to all other Obligations not described in clauses FIRST through SEVENTH, PRO RATA to the Agent and Lenders. Notwithstanding the foregoing, if, at the time of any application of any such payment the Commitment Termination Date has occurred, amounts then due under Hedging Agreements from any Borrower shall share (i) on a PRO RATA basis in applications referred to in clauses SIXTH and SEVENTH, until all Revolving Credit Advances have been paid in full, all Letter of Credit Obligations have been fully cash collateralized in the manner described set forth in Section 2.18, ratably to the aggregate, combined principal balance Annex B and all obligations of the other Loans and outstanding Letter of Credit Obligations; sixth, to all other Obligations, including expenses of Lenders to the extent reimbursable such Borrower under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations its Hedging Agreements have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated paid in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaidfull.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the each Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the Revolving LoanCredit Advances, due and owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time or would cause the aggregate balance of the Revolving Loan and the Swing Line Loan of any Borrower to exceed such Borrower's separate Borrowing Base after giving effect to such charges. At the Administrative Agent’s 's option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Samples: Credit Agreement (H&e Finance Corp)
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Swing Line Loan and, second, to the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to in accordance with the provisions of Section 2.91.3(a); and (iv) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(c) and 1.3(d). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon In the occurrence and during the continuation absence of an Event of Defaulta specific determination by Agent with respect thereto, payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, (2) to interest on the Swingline Swing Line Loan; third, (3) to principal payments on the Swingline Swing Line Loan; fourth, (4) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, unpaid Swap Related Reimbursement Obligations and unpaid swap obligations owing to Lenders other than GE Capital or their Affiliates, ratably in proportion to the interest accrued as to each Loan, unpaid Swap Related Reimbursement Obligation or other unpaid swap obligation, as applicable; fifth, (5) to principal payments on the other Loans Loans, unpaid Swap Related Reimbursement Obligations and unpaid swap obligations owing to Lenders other than GE Capital or their Affiliates and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of the other Loans Loans, unpaid Swap Related Reimbursement Obligations, other unpaid swap obligation and outstanding Letter of Credit Obligations; sixth, and (6) to all other Obligations, Obligations including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid11.3.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the each Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the Revolving LoanCredit Advances, due and owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time or would cause the aggregate balance of the Revolving Loan and the Swing Line Loan of any Borrower to exceed such Borrower’s separate Borrowing Base after giving effect to such charges or if such charges would cause the aggregate balance of the Revolving Loan and Swing Line Loan to exceed the Aggregate Borrowing Base after giving effect to such charges. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Application and Allocation of Payments. (a) So long as no Default or Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts (other than Export-Related Accounts) received in the ordinary course of business shall be applied, first, to the Swingline Loan andSwing Line Loan, second, the Revolving Credit Advances, and third, to the Export-Related Advances, (ii) payments consisting of proceeds of Export-Related Accounts received in the ordinary course of business shall be applied, first, to the Export-Related Advances, second, to the Swing Line Loan, and third, to the Revolving Credit Advances; (iiiii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iiiiv) voluntary prepayments shall be applied as determined by the Borrower RepresentativeBorrower, subject to the provisions of Section 2.91.3(a); and (ivv) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(c) and 1.3(d). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an a Default or Event of Default has occurred and is continuingcontinuing or following the Commitment Termination Date, each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers Borrower as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon In the occurrence absence of a specific determination by Agent with respect thereto and during the continuation of an Event of Defaultexcept as provided in Section 1.11(b), payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunder; second, (2) to interest on the Swingline Swing Line Loan; third, (3) to principal payments on the Swingline Swing Line Loan; fourth, (4) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, (5) to principal payments on the other Loans and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of the other Loans and outstanding Letter of Credit Obligations; sixth, and (6) to all other Obligations, including expenses of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid11.3.
(b) The Administrative Lenders hereby agree that so long as any of the Loans have been declared to be immediately due and payable, all proceeds of the Collateral shall be applied first to Fees and Agent’s expenses reimbursable hereunder; and (i) with respect to proceeds of Term Loan Priority Collateral, second to interest on the Term Loan, third to principal payments on the Term Loan, fourth to all other Obligations of the Term Lenders, including expenses of Term Lenders to the extent reimbursable under Section 11.3, fifth to interest on the Swing Line Loan, sixth to principal payments on the Swing Line Loan, seventh to interest on the other Loans (other than the Last Out Term Loan), ratably in proportion to the interest accrued as to each Loan, eighth to principal payments on the other Loans (other than the Last Out Term Loan) and to provide cash collateral for Letter of Credit Obligations in the manner described in Annex B, ratably to the aggregate, combined principal balance of the other Loans (other than the Last Out Term Loan) and outstanding Letter of Credit Obligations, ninth to all other Obligations of the Revolving Lenders, including expenses of Revolving Lenders to the extent reimbursable under Section 11.3, tenth to interest on the Last Out Term Loan, eleventh to principal payments on the Last Out Term Loan, twelfth to all other Obligations of the Last Out Term Lenders, including expenses of Last Out Term Lenders to the extent reimbursable under Section 11.3, and (ii) (A) with respect to proceeds of Revolving Loan Priority Collateral which constitutes Export-Related Accounts, second to interest on the Export-Related Loan, third to principal payments on the Export-Related Loan, fourth to interest on the Swing Line Loan, fifth to principal payments on the Swing Line Loan, sixth to interest on the Revolving Loan, seventh to principal payments on the Revolving Loan and to provide cash collateral for Letter of Credit Obligations in the manner described in Annex B, eighth to all other Obligations of the Revolving Lenders, including expenses of Revolving Lenders to the extent reimbursable under Section 11.3, ninth to interest on the Term Loan, tenth to principal payments on the Term Loan, eleventh to all other Obligations of the Term Lenders, including expenses of Term Lenders to the extent reimbursable under Section 11.3, twelfth to interest on the Last Out Term Loan, thirteenth to principal payments on the Last Out Term Loan, fourteenth to all other Obligations of the Last Out Term Lenders, including expenses of the Last Out Term Lenders to the extent reimbursable under Section 11.3, and (B) with respect to proceeds of Revolving Loan Priority Collateral (other than Export-Related Accounts), second to interest on the Revolving Loan, third to principal payments on the Revolving Loan, fourth to interest on the Swing Line Loan, fifth to principal payments on the Swing Line Loan, sixth to interest on the Export-Related Loan, seventh to principal payments on the Export-Related Loan and to provide cash collateral for Letter of Credit Obligations in the manner described in Annex B, eighth to all other Obligations of the Revolving Lenders, including expenses of Revolving Lenders to the extent reimbursable under Section 11.3, ninth to interest on the Term Loan, tenth to principal payments on the Term Loan, eleventh to all other Obligations of the Term Lenders, including expenses of Term Lenders to the extent reimbursable under Section 11.3, twelfth to interest on the Last Out Term Loan, thirteenth to principal payments on the Last Out Term Loan, fourteenth to all other Obligations of the Last Out Term Lenders, including expenses of Last Out Term Lenders to the extent reimbursable under Section 11.3. The provisions of this clause (b) is for the benefit of the Lenders and Borrower shall have no rights with respect hereto. Agent shall use commercially reasonable efforts to apply, promptly upon receipt, as provided herein, all payments and proceeds of Collateral which are required to be paid to a Lender or applied to a Loan under this Agreement.
(c) Agent is authorized to, to (and at its sole election may, ) charge to the Revolving Loan balance on behalf of the Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and ), interest and principal, other than Obligations (but not principal of on the Revolving Loan), owing by the Borrowers Borrower under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail Borrower fails to pay promptly any such amounts as and when due. At , even if the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage amount of such charges would exceed Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amountAvailability at such time.
Appears in 1 contract
Samples: Credit Agreement (Applied Extrusion Technologies Inc /De)
Application and Allocation of Payments. (a) So long as no Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Swing Line Loan and, second, to the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iii) voluntary prepayments shall be applied as determined by the Borrower Representative, subject to in accordance with the provisions of Section 2.91.3(a); and (iv) mandatory prepayments shall be applied as set forth in Section 2.10Sections 1.3(c) and 1.3(d). All payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an Event of Default has occurred and is continuing, each Borrower hereby irrevocably waives continuing or following the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon the occurrence and during the continuation of an Event of DefaultCommitment Termination Date, payments shall be applied to amounts then due and payable in the following order: first, (1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s expenses reimbursable hereunderhereunder and expenses of Lenders to the extent reimbursable under Section 11.3; second, (2) to interest on the Swingline Swing Line Loan; third, (3) to principal payments on of the Swingline Swing Line Loan; fourth, (4) to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, (5) to principal payments on of the other Loans and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of the other Loans and outstanding Letter of Credit Obligations; sixth(6) to interest on unpaid Swap Related Reimbursement Obligations, unpaid swap obligations owing to Lenders other than GE Capital or their Affiliates and Treasury Management Obligations, ratably in proportion to the interest accrued as to each unpaid Swap Related Reimbursement Obligation, unpaid swap obligation and Treasury Management Obligation; (7) to principal payments of unpaid Swap Related Reimbursement Obligations, unpaid swap obligations owing to Lenders other than GE Capital or their Affiliates and Treasury Management Obligations, ratably to the aggregate principal balance of the unpaid Swap Related Reimbursement Obligations, other unpaid swap obligations and Treasury Management Obligations; and (8) to all other Obligations. In carrying out the foregoing, including expenses no payments by a Guarantor and no proceeds of Lenders to the extent reimbursable under Section 9.4; and seventh, the remaining balance thereof, if any, Collateral of a Guarantor shall be returned applied to the Borrower Representative, except in the case where the maturity date Excluded Rate Contract Obligations of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaidsuch Guarantor.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the each Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the Revolving LoanCredit Advances, due and owing by the Borrowers under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail to pay promptly any such amounts as and when due, even if the amount of such charges would exceed Borrowing Availability at such time or would cause the aggregate balance of the Revolving Loan and the Swing Line Loan of any Borrower to exceed such Borrower’s separate Borrowing Base after giving effect to such charges or if such charges would cause the aggregate balance of the Revolving Loan and Swing Line Loan to exceed the Aggregate Borrowing Base after giving effect to such charges. At the Administrative Agent’s option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
Application and Allocation of Payments. (a) So long as no Default or Event of Default has occurred and is continuing, (i) payments consisting of proceeds of Accounts received in the ordinary course of business shall be applied, first, to the Swingline Loan and, second, the Revolving Loan; (ii) payments matching specific scheduled payments then due shall be applied to those scheduled payments; (iiiii) voluntary prepayments shall be applied as determined by the Borrower RepresentativeBorrower, subject to the provisions of Section 2.91.3(a); and -------------- (iviii) mandatory prepayments shall be applied as set forth in Section 2.101.3(c). All -------------- payments and prepayments applied to a particular Loan shall be applied ratably to the portion thereof held by each Lender as determined by its Applicable PercentagePro Rata Share. As to any other payment, and as to all payments made when an a Default or Event of or Default has occurred and is continuingcontinuing or following the Commitment Termination Date (including all proceeds of Collateral), each Borrower hereby irrevocably waives the right to direct the application of any and all payments received from or on behalf of such Borrower, and each Borrower hereby irrevocably agrees that the Administrative Agent shall have the continuing exclusive right to apply any and all such payments against the Obligations of the Borrowers as Administrative Agent may deem advisable notwithstanding any previous entry by the Administrative Agent in the Loan Account or any other books and records. Upon the occurrence and during the continuation of an Event of Default, payments shall be applied to amounts then due and payable in the following order: first, the
(1) to Fees (excluding the Commitment Fee and Letter of Credit Participation Fees), and the Administrative Agent’s 's expenses reimbursable hereunder; second, (2) to interest on the Swingline Loan; third, to principal payments on the Swingline Loan; fourth, to the Commitment Fee, the Letter of Credit Participation Fee and interest on the other Loans, ratably in proportion to the interest accrued as to each Loan; fifth, (3) to principal payments on the other Loans and to provide cash collateral for Letter of Credit Obligations in the manner described in Section 2.18Annex B, ratably to the aggregate, combined principal balance of ------- the other Loans and outstanding Letter of Credit Obligations; sixth, (4) to all other Obligations, including expenses of Lenders to the extent reimbursable under Section 9.411.3 but excluding Rate Management Obligations; and seventh, the remaining balance (5) to any Rate ------------ - Management Obligations (on a ratable basis based upon respective amounts thereof, if any, shall be returned to the Borrower Representative, except in the case where the maturity date of the Obligations have been accelerated pursuant to Article VII or deemed accelerated pursuant to paragraphs (g) or (h) of Article VII and any Obligations remain outstanding. Each prepayment of Revolving Loans (to the extent the commitments are reduced or terminated in connection therewith) and any prepayment of the Term Loan after acceleration of the maturity date thereof applied pursuant to this Section 2.14(a), in each case shall be accompanied by the corresponding Prepayment Fee pursuant to Section 2.5(d) determined with respect to the amount so prepaid.
(b) The Administrative Agent is authorized to, and at its sole election may, charge to the Revolving Loan balance on behalf of the Borrower and cause to be paid all Fees, expenses, chargesCharges, costs (including insurance premiums in accordance with Section 5.2(e5.4(a)) and interest and principal, other than principal of the -------------- Revolving Loan, owing by the Borrowers Borrower under this Agreement or any of the other Loan Documents if and to the extent the Borrowers fail Borrower fails to pay promptly any such amounts as and when due. At the Administrative Agent’s 's option and to the extent permitted by law, any charges so made shall constitute part of the Revolving Loans Loan hereunder.
(c) Except as required under Section 2.12 and subject to Section 2.10 and except as otherwise expressly provided in this Agreement, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest on the Loans and Letter of Credit Obligations, each payment of the Commitment Fees or Letter of Credit Participation Fees, each reduction of the Revolving Credit Commitments and each refinancing of any Borrowing with, conversion of any Borrowing to or continuation of any Borrowing as a Borrowing of any Type shall be allocated (except in the case of Swingline Loans) 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 applicable outstanding Loans or participations in Letter of Credit Obligations, as applicable). Each Lender agrees that in computing such Lender’s portion of any Borrowing of Loans or participations in Letter of Credit Obligations, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing of Loans or participations in Letter of Credit Obligations, computed to the next higher or lower whole dollar amount.
Appears in 1 contract
