Common use of Application of Payments; Sharing Clause in Contracts

Application of Payments; Sharing. (a) Subject to the provisions of this Section 3.22, the Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of the Borrower in respect of any Secured Obligations of the Borrower hereunder or under any other Financing Document, it shall promptly distribute such payment to the Lenders pro rata based upon their respective shares, if any, of the Secured Obligations with respect to which such payment was received. (b) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (i) notify the Administrative Agent of such fact, and (ii) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided, that: (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express terms of this Credit Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or TALC Participations to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (c) Notwithstanding the foregoing, if there are insufficient funds in the Secured Accounts to make each of the principal payments of the Loans in accordance with both Sections 3.4(e) and 7.8(iii) of the Collateral Agreement, then such funds shall be applied first, to the repayment in full of the outstanding principal amount of all Loans other than the Term Loans (if any); second, to the repayment in full of the outstanding principal amount of the Tranche A Term Loans; and finally, to the repayment of the outstanding principal amount of the Tranche B Term Loans.

Application of Payments; Sharing. (a) Subject to the provisions of this Section 3.22, the Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of the Borrower in respect of any Secured Obligations of the Borrower hereunder or under any other Financing Document, it shall promptly distribute such payment to the Lenders pro rata based upon their respective shares, if any, of the Secured Obligations with respect to which such payment was received. (b) If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or other obligations hereunder resulting in such Lender receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (i) notify the Administrative Agent of such fact, and (ii) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided, that: (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and (ii) the provisions of this paragraph shall not be construed to apply to (x) any payment made by the Borrower pursuant to and in accordance with the express NEWYORK 8115155 (2K) 21 terms of this Credit Agreement (including the application of funds arising from the existence of a Defaulting Lender) or (y) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or TALC Participations to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (c) Notwithstanding the foregoing, if there are insufficient funds in the Secured Accounts to make each of the principal payments of the Loans in accordance with both Sections 3.4(e) and 7.8(iii) of the Collateral Agreement, then such funds shall be applied first, to the repayment in full of the outstanding principal amount of all Loans other than the Term Loans (if any); second, to the repayment in full of the outstanding principal amount of the Tranche A Term Loans; and finally, to the repayment of the outstanding principal amount of the Tranche B Term Loans.

Application of Payments; Sharing. (a) Subject to the provisions of the Intercreditor Agreement and this Section 3.223.7, the Administrative Agent agrees that promptly after its receipt of each payment from or on behalf of the Borrower in respect of any Secured Obligations of the Borrower hereunder or under any other Financing Documenthereunder, it shall promptly distribute such payment to the Lenders pro rata based upon their respective shares, if any, of the Secured Obligations with respect to which such payment was received. (b) If Each of the Lenders agrees that, except to the extent that this Agreement provides for payments to be allocated to particular Lenders or to Lenders holding a particular Loan, if it should receive any Lender shallpayment hereunder on account of the Obligations (whether by voluntary payment, by exercising any realization upon security, by the exercise of the right of setoff or banker's lien, by counterclaim or otherwisecross action, obtain payment in respect by the enforcement of any principal of right under the Financing Documents, or interest on otherwise), which, in any such case, is in excess of its Loans or other obligations hereunder resulting in ratable share of payments on account of the Obligations obtained by all Lenders, then such Lender receiving such excess payment of a proportion shall purchase for cash without recourse or warranty from the other Lenders an interest in the Obligations of the aggregate Borrower to such Lenders in such amount of its Loans and accrued interest thereon or other such obligations greater than its pro rata share thereof as provided herein, then the Lender receiving such greater proportion shall (i) notify the Administrative Agent of such fact, and (ii) purchase (for cash at face value) participations in the Loans and such other obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of result in a proportional participation by all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing themsuch amount; provided, that: (i) however, that if any such participations are purchased and all or any portion of the payment giving rise thereto such excess amount is recoveredthereafter recovered from such Lender, such participations purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest; . Notwithstanding the foregoing provisions of this paragraph, in the event that (i) during the period between the Closing Date and the date which is 91 days after the Closing Date, an Event of Default occurs under Section 8.1(e) and (ii) during the provisions proceeding constituting such Event of this paragraph shall not be construed to apply to (x) Default any payment made by the Borrower in respect of either the Continued Tranche B Loan or the New Tranche B Loan, as the case may be, prior to the commencement of any such proceeding is avoided or otherwise recovered pursuant to Sections 547 and 550 of the Bankruptcy Code, or any lien granted by the Borrower prior to the commencement of any such proceeding to secure either the Continued Tranche B Loan or the New Tranche B Loan, as the case may be, is avoided or otherwise recovered pursuant to Section 547 of the Bankruptcy Code, then, in accordance with the express terms any such case, solely for purposes of this Credit Agreement paragraph, such payment or such lien shall be deemed not to have been avoided or recovered, and (including the application of funds arising from the existence of a Defaulting Lender) or (yfor greater certainty) any payment obtained by a Lender amount that would have been received in respect of the Continued Tranche B Loan or the New Tranche B Loan, as consideration for the assignment of or sale of a participation in any of its Loans or TALC Participations case may be, if such lien had not been so avoided shall be deemed to any assignee or participant, other than have been received and not avoided. Anything to the Borrower or any Subsidiary thereof (as to which the provisions of contrary in this paragraph shall apply). The Borrower consents to the foregoing and agreesAgreement notwithstanding, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (c) Notwithstanding the foregoing, if there are insufficient funds in the Secured Accounts to make each of the principal payments of the Loans in accordance with both Sections 3.4(e) and 7.8(iii) of the Collateral Agreement, then such funds shall be applied first, to the repayment in full of the outstanding principal amount of all Loans other than the Term Loans (if any); second, to the repayment in full of the outstanding principal amount of the Tranche A Term Loans; and finally, to the repayment of the outstanding principal amount proceeds of the Tranche B Term Loans.Escrow Account (including all substitutions and replacements therefor) shall be applied solely to the New Tranche B Loan ratably among the New Tranche B Lenders according to the respective outstanding principal amounts of the New Tranche B Loan held by the New Tranche B Lenders, and shall not be shared with the Continued Tranche B Lenders on account of the Continued Tranche B Loan. 3.8