Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied as follows: (A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full, (B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full, (C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full, (D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full, (E) fifth, to pay interest due in respect of all Agent Advances until paid in full, (F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full, (G) seventh, to pay the principal of all Agent Advances until paid in full, (H) eighth, to pay the principal of all Swing Loans until paid in full, (I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full, (J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full, (K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and (L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law. (ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f). (iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement. (iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding. (v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 3 contracts
Samples: Loan, Guaranty and Security Agreement (Gordmans Stores, Inc.), Loan, Guaranty and Security Agreement (Gordmans Stores, Inc.), Loan, Guaranty and Security Agreement (Gordmans Stores, Inc.)
Apportionment and Application of Payments. On each Remittance Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided amounts on deposit in the Loan Documents Collection Account, including, all Collections, to the extent of available funds, (including letter agreements between Agent ii) Servicer Advances, and individual Lenders(iii) amounts received in respect of any Hedge Agreement during such Collection Period (the sum of such amounts described in clauses (i), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lenderii) and payments (iii), being the “Available Collections”) the following amounts in the following order of fees and expenses priority:
(other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lendersa) shall be apportioned ratably among During the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentsRevolving Credit Availability Period, and all proceeds of Collateral received by Agentin each case unless otherwise specified below, applying Available Collections (provided, that, Available Collections which do not constitute Principal Collections shall be applied as follows:to the extent available before any Available Collections constituting Principal Collections are applied):
(A) firstFIRST, to pay the Servicer, in an amount equal to any Lender Group Expenses then due to Agent under unreimbursed Servicer Advances, for the Loan Documents, until paid in full,payment thereof;
(B) secondSECOND, to pay any Lender Group Expenses then due the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the Lenders under end of the Loan Documents, on a ratable basis, until paid in full,preceding Collection Period for the payment thereof;
(C) thirdTHIRD, ratably, (A) to pay the Backup Servicer and any fees then due to Agent (for its separate accountSuccessor Servicer, after giving effect as applicable, in an amount equal to any letter agreements between Agent accrued and individual Lendersunpaid Backup Servicing Fees, in an amount not to exceed the aggregate Backup Servicing Fees provided for in the Backup Servicer Engagement Letter per annum, (B) under to the Loan Documents until paid Collateral Custodian in full,an amount equal to any accrued and unpaid Collateral Custodian Fees, in an amount not to exceed the aggregate Collateral Custodian Fees provided for in the Collateral Custodian Fee Letter per annum, and (C) to the Agent, in an amount equal to any accrued and unpaid Agent’s Fee;
(D) fourthFOURTH, to pay each Hedge Provider, any fees then due amounts owing that Hedge Provider under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Provider is not the same Person as the Agent, any or all of the Lenders (after giving effect to any letter agreements between Agent Swap Breakage and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,Indemnity Amounts;
(E) fifthFIFTH, to pay interest due the Agent for payment to each Lender, in respect of all Agent Advances until paid in full,an amount equal to any accrued and unpaid Interest and Unused Fee for such Remittance Date;
(F) sixthSIXTH, ratably first, to pay interest due in respect the Agent for payment to each Lender, an amount equal to the excess, if any, of outstanding Advances over the Advances lesser of (other than Agent Advancesi) and the Swing LoansBorrowing Base or (ii) the Facility Amount, until paid in full,pro rata;
(G) seventhSEVENTH, ratably, (A) to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and any other amounts due and owing to such Person and (B) to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and any other amounts due and owing to such Person, in each case, to pay the principal of all Agent Advances until extent not paid in full,pursuant to clause THIRD above;
(H) eighthEIGHTH, to pay the principal of all Swing Loans until paid in full,each Hedge Provider, any Swap Breakage and Indemnity Amounts owing that Hedge Provider;
(I) ninth, so long as no Event of Default has occurred and is continuingNINTH, to pay the principal Agent for payment to each Lender, in the amount of all Advances until paid in full,unpaid Breakage Costs with respect to any prepayments made prior to such Remittance Date and any other costs or expenses, and/or taxes (if any) owed to such Lender;
(J) tenthTENTH, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, all other amounts or Obligations then due under this Agreement or the other Loan Documents to be held by the Agent, the Lenders or any Indemnified Person, each for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,payment thereof;
(K) eleventh, if an Event of Default has occurred and is continuingELEVENTH, to pay any the Servicer, all other Obligations (including amounts then due under this Agreement or the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up other Loan Documents to the amount determined by Agent in its Permitted Discretion as Servicer, for the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition payment thereof), ; and
(L) twelfthTWELFTH, to Borrower (to be wired all remaining amounts to the Designated Account) or such other Person entitled thereto under applicable lawBorrower.
(b) During the Amortization Period, to the extent of Available Collections (provided, that, (i) Available Collections which do not constitute Principal Collections shall be applied to clauses FIRST through SIXTH to the extent available before any Available Collections constituting Principal Collections are applied, and (ii) unless an Event of Default shall have occurred and be continuing, only Available Collections constituting Principal Collections shall be applied to clause SIXTH):
(A) FIRST, to the Servicer, in an amount equal to any unreimbursed Servicer Advances, for the payment thereof;
(B) SECOND, to the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the end of the preceding Collection Period for the payment thereof;
(C) THIRD, ratably, (A) to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee, in an amount not to exceed the aggregate Backup Servicing Fees provided for in the Backup Servicer Engagement Letter per annum, (B) to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee, in an amount not to exceed the aggregate Collateral Custodian Fees provided for in the Collateral Custodian Fee Letter per annum, and (C) to the Agent, in an amount equal to any accrued and unpaid Agent’s Fee;
(D) FOURTH, to each Hedge Provider, any amounts owing that Hedge Provider under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Provider is not the same Person as the Agent, any Swap Breakage and Indemnity Amounts;
(E) FIFTH, to the Agent promptly shall distribute for payment to each Lender, in an amount equal to any accrued and unpaid Interest and Unused Fee for such Remittance Date;
(F) SIXTH, to the Agent for ratable payment to each Lender, in an amount to reduce outstanding Advances to zero;
(G) SEVENTH, ratably, (A) to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and any other amounts due and owing to such Person and (B) to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and any other amounts due and owing to such Person, in each case, to the extent not paid pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).clause THIRD and FOURTH above;
(iiiH) In EIGHTH, to each instanceHedge Provider, so long as no Event any Swap Breakage and Indemnity Amounts owing that Hedge Provider;
(I) NINTH, to the Agent for payment to each Lender, in the amount of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply unpaid Breakage Costs with respect to any payment by Borrower specified by Borrower prepayments made on such Remittance Date, increased costs and/or taxes (if any) owed to be such Lender;
(J) TENTH, to the Agent, all other amounts or Obligations then due under this Agreement or the other Loan Documents to the Agent, the Lenders or any Indemnified Person, each for the payment of specific thereof;
(K) ELEVENTH, to the Servicer, all other amounts then due under this Agreement or the other Loan Documents to the Servicer, for the payment thereof;
(L) TWELFTH, to the Agent, all other amounts or Obligations then due and payable (under this Agreement or prepayable) under the other Loan Documents to any provision of this Agreement.Defaulting Lender, each for the payment thereof; and
(ivM) For purposes of the foregoingTHIRTEENTH, “paid in full” means payment of all remaining amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) Borrower. In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 3 contracts
Samples: Loan and Security Agreement (Horizon Technology Finance Corp), Loan and Security Agreement (Horizon Technology Finance Corp), Loan Agreement (Horizon Technology Finance Corp)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Irish Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Irish Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Irish Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Irish Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Irish Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver CommitmentLenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision Obligations of amounts to Agent, to be held by Agent as cash collateral Subsidiary Borrower then owing under the guarantee contained in an amount up to the amount determined by Agent Irish Debenture) until paid in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth, to Subsidiary Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Subsidiary Borrower specified by Subsidiary Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Irish Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Irish Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 2 contracts
Samples: Loan Agreement (Palm Inc), Loan Agreement (Palm Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents Documents, until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) ), under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 2 contracts
Samples: Loan and Security Agreement (Acme Communications Inc), Loan and Security Agreement (Acme Television LLC)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the UK Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the UK Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the UK Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the UK Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the UK Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver CommitmentLenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision Obligations of amounts to Agent, to be held by Agent as cash collateral Subsidiary Borrower then owing under the guarantee contained in an amount up to the amount determined by Agent UK Debenture) until paid in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth, to Subsidiary Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Subsidiary Borrower specified by Subsidiary Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the UK Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other UK Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 2 contracts
Samples: Loan Agreement (Palm Inc), Loan Agreement (Palm Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent Agent, individual Lenders and individual LendersBorrower), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of the Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to ii)to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agentincluding, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereofwithout limitation, Banking Services Obligations), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 2 contracts
Samples: Loan and Guaranty Agreement (Collective Brands, Inc.), Loan and Guaranty Agreement (Payless Shoesource Inc /De/)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) : first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) , second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) , third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents Documents, until paid in full,
(D) , fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) ), under the Loan Documents, on a ratable basis, until paid in full,
(E) , fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) , sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) , seventh, to pay the principal of all Agent Advances until paid in full,
(H) , eighth, to pay the principal of all Swing Loans until paid in full,
(I) , ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) , tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver CommitmentLenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) , eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agentthen due and payable until paid in full, and twelfth, to be held by Agent as cash collateral in an amount up the extent there is outstanding Term Loan Indebtedness, to the amount determined by Term Loan Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, and otherwise to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 2 contracts
Samples: Loan and Security Agreement (Acme Communications Inc), Loan and Security Agreement (Acme Communications Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, the Term Loan and the Capex Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan and the Capex Loans until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(IJ) ninthtenth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(K) eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JL) tenthtwelfth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of Wells Fargo or its Affiliates, as applicable, as xxxx collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(M) thirteenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full, then the Capex Loans (in inverse order of the maturity of the installments due thereunder) until the Capex Loans are paid in full;
(N) fourteenth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
, (KO) eleventh, if an Event of Default has occurred and is continuingfifteenth, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (bBank Product Obligations) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “until paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.and
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of any Loan Party's Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and the Term Loan until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of Bank Products in an amount up to the amount of the Bank Product Reserves, until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JK) tentheleventh, so long as no Event of Default has occurred and is continuing, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(L) twelfth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal amount of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(KM) elevenththirteenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loan until the Term Loan is paid in full,
(N) fourteenth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(O) fifteenth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral Bank Product Obligations) until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LP) twelfthsixteenth, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (U Haul International Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All Subject to Section 2.4(b)(iii), all payments shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) ), and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver CommitmentLenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)Obligations, and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except So long as otherwise provided with respect to Defaulting Lenders no Application Event has occurred and is continuing and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual herein with respect to Defaulting Lenders), aggregate all principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations held by each Lender to which such payments relate held by each Lenderrelate) and all payments of fees and expenses received by Agent (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee or expense relates. All payments to be made hereunder by Borrower shall be remitted to Agent and all (subject to Section 2.3(b)(iv)), such payments, and all proceeds of Collateral received by Agent, shall be applied, (A) so long as the Amortization Commencement Date has not occurred, to reduce the balance of the Advances outstanding and, thereafter, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law; provided, however, that so long as no Event of Default has occurred and is continuing, Borrower, Agent and Lenders agree that during the Revolving Credit Availability Period, Borrower will, to the extent of any existing Availability, request Advances first, to pay the items specified in tiers (A) through (K) of Sections 2.3(b)(ii) below, in the order therein specified, and then may request an Advance of any remaining Availability to Borrower (to be wired to the Designated Account), and (B) once the Amortization Commencement Date has occurred, first, to pay the items specified in tiers (A) through (I) of Sections 2.3(b)(ii) below, in the order therein specified, second, to pay the items specified in tiers (J) through (L) of Sections 2.3(b)(ii) below, in the order therein specified, to the extent necessary to avoid the occurrence of an Overadvance, and third, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) At any time that an Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all payments remitted to Agent and all proceeds of Collateral received by Agent shall be applied as follows:
(A) first, to pay any Collateral Custodian Fees and any other unpaid expenses or indemnities owed to the Collateral Custodian by Servicer or Borrower then due, until paid in full,
(B) second, to pay any Servicing Fee of Servicer then due, until paid in full,
(C) third, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the Loan Documents, until paid in full,
(BD) secondfourth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(CE) thirdfifth, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents Documents, until paid in full,
(DF) fourthsixth, ratably, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(EG) fifthseventh, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(FH) sixtheighth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, ratably to pay Hedge Obligations (excluding breakage fees) due in respect of interest rate Hedge Agreements (based upon amounts then certified by the principal applicable Hedge Provider to Agent (in form and substance satisfactory to Agent) to be due and payable to such Hedge Provider on account of all Advances Hedge Obligations (excluding breakage fees)), until paid in full,
(J) tenth, if an Event to pay the principal of Default has occurred and is continuingall Agent Advances, until paid in full,
(K) eleventh, to pay the principal of all Swing Loans, until paid in full,
(L) twelfth, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to the Bank Product Providers, ratably based upon amounts then certified by the applicable Bank Product Provider to Agent (in form and substance satisfactory to Agent) to be due and payable to such Bank Product Providers on account of Bank Product Obligations (including Hedge Obligations consisting of breakage fees under interest rate Hedge Agreements),
(M) thirteenth, to pay any other Obligations other than Obligations owed to Defaulting Lenders (including being paid, ratably, to the Bank Product Providers on account of all amounts then due and payable in respect of Bank Product Obligations, with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitmentthe Bank Product Providers, as cash collateral an amount up (which cash collateral may be released by Agent to 105% the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any amounts due and payable with respect to Bank Product Obligations owed to the then extant Letter of Credit Usage until applicable Bank Product Provider as and when such amounts first become due and payable and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full, the cash collateral held by Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.3(b)(ii), beginning with tier (A) hereof),
(KN) eleventhfourteenth, if an Event of Default has occurred and is continuing, ratably to pay any other Obligations (including the provision of amounts owed to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)Defaulting Lenders, and
(LO) twelfthfifteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iiiii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.2(g).
(iiiiv) In each instance, so long as no Application Event of Default has occurred and is continuing, this Section 2.5(b2.3(b) shall not be deemed to apply to any payment made by Borrower to Agent and specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(ivv) For purposes of the foregoingSection 2.3(b)(ii), “paid in full” of a type of Obligation means payment in cash or immediately available funds of all amounts owing under the Loan Documents according to the terms thereofon account of such type of Obligation, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, irrespective of whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(vvi) In the event of a direct conflict between the priority provisions of this Section 2.5 2.3 and other provisions contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, if the conflict relates to the provisions of Section 2.2(i) and this Section 2.3, then the provisions of Section 2.2(i) shall control and govern, and if otherwise, then the terms and provisions of this Section 2.5 2.3 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Horizon Technology Finance Corp)
Apportionment and Application of Payments. (i) Except So long as otherwise no Application Event has occurred and is continuing, any amounts in the Collection Account constituting Principal Collections shall be applied to prepay the principal of the Loans on the applicable Payment Date, to each Lender in accordance with its Pro Rata Share; provided that, solely during the Availability Period, if the Overcollateralization Ratio is equal to or greater than 150% and no Default or Event of Default shall have occurred and be continuing, such amounts shall not be applied in such manner and shall be made available for reinvestment by Borrower in accordance with respect Section 6.18(c).
(ii) So long as no Application Event has occurred and is continuing, all amounts in the Collection Account constituting Interest Collections of Borrower shall be applied on the applicable Payment Date as follows:
(A) first, to Defaulting pay ratably in accordance with the amounts of Collateral Custodian Fees owed to the Collateral Custodian, to pay fees payable to the Collection Account Bank in accordance with Section 10 of the Collection Account Agreement and all other out-of-pocket costs, expenses, indemnities and reimbursements (including without limitation, attorneys’ fees and expenses) then due and owing to the Collateral Custodian or Collection Account Bank pursuant to this Agreement or any other Loan Document, until paid in full,
(B) second, to pay the Back-Up Servicer, the Back-up Servicer Fees (including the one-time successor servicer engagement fee described in the Back-Up Servicer Engagement Letter) and all other out-of-pocket costs, expenses, indemnities and reimbursements (including without limitation, attorneys’ fees and expenses) then due and owing, until paid in full,
(C) third, to pay the Servicer, the Servicing Fees and any reimbursable out-of-pocket expenses, indemnities and reimbursements owed to any successor Servicer (including, without limitation, attorneys’ fees and expenses) then due and owing, until paid in full,
(D) fourth, ratably to pay each Hedge Provider (if any), the amounts due under any interest rate Hedge Agreement (excluding breakage fees) then due and owing, until paid in full,
(E) fifth, to pay any Lender Group Expenses (including cost or expense reimbursements and any amounts due under Section 2.10(c)) or indemnities then due and owing to Agent under the Loan Documents, until paid in full,
(F) sixth, ratably in accordance with the amounts of Lender Group Expenses or indemnities owed to each Person in the Lender Group, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due and owing to any of the Lenders under the Loan Documents, until paid in full,
(G) seventh, to pay any fees then due and except as otherwise provided in owing to Agent under the Loan Documents (including letter agreements between Agent and individual Lendersany amounts due under Section 2.10(b)), aggregate principal until paid in full,
(H) eighth, ratably in accordance with the fees owed to each Person in the Lender Group, to pay any fees then due and owing to any or all of the Lenders under the Loan Documents (including any amounts due under Section 2.10(a)), until paid in full,
(I) ninth, to pay the Servicer, all out-of-pocket costs, expenses, indemnities and reimbursements (including without limitation, attorneys’ fees) then due and owing to Servicer pursuant to this Agreement or any other Loan Document, until paid in full,
(J) tenth, ratably in accordance with the interest payments shall be apportioned ratably among the Lenders (according due to the unpaid principal balance each Lender, to pay interest due in respect of the Loans, until paid in full,
(K) eleventh, ratably to each Hedge Provider, unpaid breakage fees due under any interest rate Hedge Agreement,
(L) twelfth, to pay any other Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees the principal amount of the Loans), until paid in full, and
(M) thirteenth, to remain in the Collection Account or expenses that are otherwise upon request of Borrower, to be wired to the Designated Account for Agent’s separate accountthe purposes permitted under, and in accordance with, Sections 6.18(c) and 7.10 so long as the Borrower is in compliance with Section 6.19, after giving effect to the transfer of such amounts to the Designated Account and the application of proceeds thereof.
(iii) At any letter agreements between Agent time that an Application Event has occurred and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All is continuing, all payments shall be remitted to Agent and all such payments, and all proceeds of Collateral (including all amounts in the Collection Account, whether constituting Principal Collections, Interest Collections or otherwise) received by Agent, Agent shall be applied as follows:
(A) first, to pay ratably in accordance with the amounts of Collateral Custodian Fees owed to the Collateral Custodian, fees payable to the Collection Account Bank in accordance with Section 10 of the Collection Account Agreement and all other out-of-pocket costs, expenses, indemnities and reimbursements (including without limitation, attorneys’ fees and expenses) then due and owing to the Collateral Custodian or Collection Account Bank pursuant to this Agreement or any other Loan Document, until paid in full,
(B) second, to pay the Back-Up Servicer, the Back-up Servicer Fees (including the one-time successor servicer engagement fee described in the Back-Up Servicer Engagement Letter) and all other out-of-pocket costs, expenses, indemnities and reimbursements (including without limitation, attorneys’ fees and expenses) then due and owing, until paid in full,
(C) third, to pay the Servicer, the Servicing Fees and any reimbursable out-of-pocket expenses, indemnities and reimbursements owed to any successor Servicer (including, without limitation, attorneys’ fees and expenses) then due and owing, until paid in full,
(D) fourth, ratably to pay each Hedge Provider (if any), the amounts due under any interest rate Hedge Agreement (excluding breakage fees) then due, until paid in full,
(E) fifth, to pay any Lender Group Expenses (including cost or expense reimbursements and any amounts due under Section 2.10(c)) or indemnities then due and owing to Agent under the Loan Documents, until paid in full,
(BF) secondsixth, ratably in accordance with the amounts of Lender Group Expenses or indemnities owed to each Person in the Lender Group, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then and owing due to any of the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay any fees then due and owing to Agent under the principal of all Agent Advances Loan Documents (including any amounts due under Section 2.10(b)), until paid in full,
(H) eighth, ratably in accordance with the fees owed to each Person in the Lender Group, to pay any fees then due and owing to any or all of the principal of all Swing Loans Lenders under the Loan Documents (including any amounts due under Section 2.10(a)), until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of Servicer, all Advances out-of-pocket costs, expenses, indemnities and reimbursements (including without limitation, attorneys’ fees) then due and owing to Servicer pursuant to this Agreement or any other Loan Document, until paid in full,
(J) tenth, if an Event of Default has occurred and is continuingratably in accordance with the interest payments due to each Lender, ratably (i) to pay the principal of all Advances until paid interest due in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% respect of the then extant Letter of Credit Usage Loans, until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuingratably in accordance with the principal payments due to each Lender, to pay any other Obligations (including the provision principal of amounts to Agent, to be held by Agent as cash collateral all Loans until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), andfull,
(L) twelfth, the amount set forth in Section 2.3(g)(ii), ratably to Borrower each Lender in accordance with its Pro Rata Share, until paid in full,
(M) thirteenth, ratably to each Hedge Provider, unpaid breakage fees due under any interest rate Hedge Agreement,
(N) fourteenth, to pay any other Obligations, until paid in full, and
(O) fifteenth, to be wired to the Designated Account) Account or such other Person entitled thereto under applicable lawLaw.
(iiiv) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(ivv) For purposes of the foregoingthis Section 2.3(f), “paid in full” of a type of Obligation means payment in cash or immediately available funds of all amounts owing under the Loan Documents according to the terms thereofon account of such type of Obligation, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, irrespective of whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Horizon Technology Finance Corp)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under ----- the Loan Documents, until paid in full,;
(B) second, to pay any Lender Group Expenses then due to the Lenders ------ under the Loan Documents, on a ratable basis, until paid in full,;
(C) third, to pay any fees then due to Agent (for its separate ----- account, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,;
(D) fourth, to pay any fees then due to any or all of the Lenders ------ (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,;
(E) fifth, to pay interest due in respect of all Agent Advances Advances, ----- until paid in full,;
(F) sixth, ratably to pay interest due in respect of the Advances ----- (other than Agent Advances) ), the Swing Loans and the Swing Loans, Term Loan until paid in full,;
(G) seventh, to pay the principal of all Agent Advances until paid in ------- full,;
(H) eighth, ratably to pay all principal amounts then due and payable ------ (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full;
(I) ninth, to pay the principal of all Swing Loans until paid in ----- full,;
(IK) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tentheleventh, if an Event of Default has occurred and is continuing, ratably (i) -------- to pay the outstanding principal balance of all Advances the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full full;
(L) twelfth, if an Event of Default has occurred and (ii) is continuing, ------- to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,;
(KM) eleventh, if an Event of Default has occurred and is continuingthirteenth, to pay any other Obligations until paid in full; and ----------
(including the provision of amounts to AgentN) fourteenth, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower Borrowers (to be wired to the Designated Account) ---------- or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).. --------------
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to -------------- any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan ----------- Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.. -----------
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee or expense relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees or other specific Obligations), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105102% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event the Agent has accelerated and made demand for repayment of Default has occurred and is continuingthe Obligations, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f)2.3.
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) Without limiting in any way the joint and several liability of Borrowers and the Guarantors hereunder, notwithstanding any provision in this Agreement or the other Loan Documents to the contrary, (x) any amounts received by the Lender Group from a Controlled Account of any Borrower (other than GCCL) or US LLC, whether upon the exercise of control as contemplated by Section 2.7, the exercise of the Lender Group's rights and remedies under the Loan Documents upon an Event of Default or otherwise, shall first reduce the Obligations of such Person and (y) any amounts received by the Lender Group from a Controlled Account of any Canadian Guarantor, NSULC or GCCL, whether upon the exercise of control as contemplated by Section 2.7, the exercise of the Lender Group's rights and remedies under the Loan Documents under an Event of Default or otherwise, shall first reduce the Obligations of such Person. Each Loan Party by execution of this Agreement agrees that such Loan Party is and shall be jointly and severally liable for the full amount of the Obligations as provided in Section 2.15 and in the Guaranty.
(v) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents in respect of the relevant Obligations according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(vvi) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and the Term Loan until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, so long as no Event of Default has occurred and is continuing, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(IJ) ninthtenth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products until paid in full,
(K) eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JL) tenthtwelfth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower’s and its Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted, and (iv) to pay the principal of the Term Loan until paid in full,
(KM) elevenththirteenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full,
(N) fourteenth, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit PartyBorrower’s and its Subsidiaries’ obligations in respect of the then extant Obligations under clause (b) of the definition thereofBank Products), and
(LO) twelfthfifteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including any letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of any Loan Party's Accounts, or Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and the Term Loan until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, so long as no Enforcement Event exists, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(IJ) ninthtenth, so long as no Enforcement Event exists, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of Default has occurred and is continuingBank Products in an amount up to the amount of the Bank Product Reserves, until paid in full,
(K) eleventh, so long as no Enforcement Event exists, to pay the principal of all Advances until paid in full,
(JL) tenthtwelfth, if an Enforcement Event of Default has occurred and is continuingexists, ratably (i) to pay the principal amount of all Advances until paid in full and full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (iii) to pay the outstanding principal balance of the Term Loan until the Term Loan is paid in full,
(KM) elevenththirteenth, if an Enforcement Event of Default has occurred and is continuingexists, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Agent of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower's and its Permitted Discretion as the amount necessary to secure each Credit Party’s Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(N) fourteenth, if an Enforcement Event exists, to pay any other Obligations under clause (bincluding Bank Product Obligations) of the definition thereof)until paid in full, and
(LO) twelfthfifteenth, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable lawthe Term Loan B Intercreditor Agreement or Applicable Laws.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment in cash of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i1) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal of or interest on specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifthC. third, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighthD. fourth, to pay the principal of all Swing Loans Loans, until paid in full,
E. fifth, to pay all outstanding reimbursement obligations for drawings made under Letters of Credit, until paid in full,
F. sixth, to pay all interest and fees due in respect of all Advances (I) ninthother than Swing Loans), until paid in full,
G. seventh, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay the principal all outstanding Obligations with respect to amounts then due and owing by any Loan Party to Agent or any Affiliate of all Advances Agent in respect of Bank Products, until paid in full,
H. eighth, to pay all principal outstanding under outstanding Advances (Jother than Swing Loans) to the Borrowers that are Prime Rate Loans based on each Lender’s Pro Rata Share, until paid in full,
I. ninth, to pay all principal outstanding under outstanding Advances (other than Swing Loans) to the Borrowers that are LIBOR Rate Loans and all breakage costs due in respect of such repayment based on each Lender’s Pro Rata Share or, at Administrative Borrower’s option, to fund a cash collateral deposit to Agent sufficient to pay, and with direction to pay, all such outstanding LIBOR Rate Loans on the last day of the then pending Interest Period for such LIBOR Rate Loans,
J. tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver CommitmentLenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (ii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserves established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Loan Parties’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted, in each case, based on such Issuing Lender’s, Lender’s or Bank Product Provider’s Pro Rata Share,
(K) K. eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s Loan Parties’ obligations in respect of the then extant Obligations Bank Products to be paid first to Agent and its Affiliates, until paid in full, and thereafter ratably among the other Bank Product Providers),
L. twelfth, to pay any Lender Group Expenses then due to the Lenders under clause (b) of the definition thereof)Loan Documents based on each Lender’s Pro Rata Share, until paid in full, and
(L) twelfthM. thirteenth, to Borrower Borrowers (to be wired to the Designated AccountAccount or, upon three (3) Business Days’ prior written notice, as otherwise directed by Administrative Borrower) or such other Person as may be entitled thereto under applicable law.
(ii2) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.2(f).
(iii3) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.3(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv4) For purposes of the foregoingArticle II of this Agreement, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v5) In the event of a direct conflict between the priority provisions of this Section 2.5 2.3 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.3 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) firstFIRST, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) secondSECOND, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) thirdTHIRD, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourthFOURTH, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifthFIFTH, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixthSIXTH, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and the Term Loan until paid in full,
(G) seventhSEVENTH, to pay the principal of all Agent Advances until paid in full,
(H) eighthEIGHTH, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(I) NINTH, to pay the principal of all Swing Loans until paid in full,
(IJ) ninth, so long as no Event of Default has occurred and is continuingTENTH, to pay the principal of all Advances until paid in full,
(JK) tenthELEVENTH, if an Event of Default has occurred and is continuing, ratably (i) to pay the outstanding principal balance of all Advances the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full full,
(L) TWELFTH, if an Event of Default has occurred and (ii) is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(KM) eleventh, if an Event of Default has occurred and is continuingTHIRTEENTH, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LN) twelfthFOURTEENTH, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(fSECTION 2.3(h).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(bSECTION 2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or required by any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 SECTION 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 SECTION 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Dairy Mart Convenience Stores Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Revolving Loan Lenders), aggregate principal and interest payments shall be apportioned ratably among the Revolving Loan Lenders (according to the unpaid principal balance of the Revolving Loan Obligations to which such payments relate held by each Revolving Loan Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Revolving Loan Lenders) shall be apportioned ratably among the Revolving Loan Lenders having a Pro Rata Share of the type of Revolver Commitment or Obligation Revolving Loan Obligations (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations other than the Term Loan Obligations or which a particular fee relates. All payments shall be remitted relate to Agent and all such paymentsthe payment of specific fees other than those payable to the Term Loan Lenders), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) firstFIRST, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) secondSECOND, to pay any Lender Group Expenses then due to the Revolving Loan Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) thirdTHIRD, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Revolving Loan Lenders) under the Loan Documents until paid in full,
(D) fourthFOURTH, to pay any fees then due to any or all of the Revolving Loan Lenders (after giving effect to any letter agreements between Agent and individual Revolving Loan Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifthFIFTH, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixthSIXTH, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventhSEVENTH, to pay the principal of all Agent Advances until paid in full,
(H) eighthEIGHTH, to pay the principal of all Swing Loans until paid in full,
(I) ninthNINTH, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby) to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) TENTH, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JK) tenthELEVENTH, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of Xxxxx Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(L) TWELFTH, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Revolving Loan Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
, (KM) eleventh, if an Event of Default has occurred and is continuingTHIRTEENTH, to pay any other Revolving Loan Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (bBank Product Obligations) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “until paid in full” means payment , -40- (N) FOURTEENTH, after all of the Revolving Loan Obligations have been paid in full, all amounts owing under Letters of Credit have either been terminated or cash collateralized and the Loan Documents according Revolver Commitments have been terminated, to pay the Lender Group Expenses then due to the terms thereofTerm Loan Lenders, including loan feeson a ratable basis, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed until paid in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.full,
Appears in 1 contract
Samples: Loan and Security Agreement (Abraxas Petroleum Corp)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and the Term Loan until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(IJ) ninth, so long as no Event of Default has occurred and is continuingtenth, to pay the principal of all Advances until paid in full,
(JK) tentheleventh, if an Event of Default has occurred and is continuing, ratably (i) to pay the outstanding principal balance of all Advances the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full full,
(L) twelfth, if an Event of Default has occurred and (ii) is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant outstanding Letter of Credit Usage until paid in full,
(KM) elevenththirteenth, if an Event of Default has occurred and as is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the ratable benefit of the Lenders having a Revolver Commitment, as cash collateral for all Obligations owing in an amount up connection with outstanding Foreign Exchange Forward Contracts,
(N) fourteenth, to the amount determined by Agent pay any other Obligations until paid in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LO) twelfthfifteenth, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except So long as otherwise provided with respect to Defaulting Lenders no Application Event has occurred, and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders)expressly specified herein, aggregate all principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses (other than fees or expenses that are for the Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee or expense relates. All payments to be made hereunder by the Borrowers shall (subject to the last sentence of Section 2.10(a) hereof) be remitted to the Administrative Agent and all (subject to Section 2.10(f)(iii) hereof) such payments, and all proceeds of Collateral received by the Agent, shall be applied, so long as no Application Event has occurred, to reduce the balance of the Term Loans and other Obligations outstanding and, thereafter, to the Administrative Borrower or such other Person entitled thereto under Applicable Law.
(ii) At any time that an Application Event has occurred, all payments remitted to the Administrative Agent and all proceeds of Collateral received by the Agent shall be applied as follows:
(A) first, to pay any Lender Group Agent Expenses (including cost or expense reimbursements) or indemnities then due to the Agent under the Loan Documents, until paid in full,;
(B) second, to pay any Lender Group Expenses fees or premiums then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,;
(DC) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifththird, to pay interest due in respect of all Agent Advances Protective Advances, pro rata, until paid in full,;
(D) fourth, to pay the principal of all Protective Advances, pro rata, until paid in full;
(E) fifth, ratably to pay any fees or premiums (including all Early Payment Fees) then due to any of the Lenders under the Loan Documents until paid in full;
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Term Loans then outstanding until paid in full,;
(G) seventh, ratably to pay the principal of all Agent Advances Term Loans then outstanding until paid in full,;
(H) eighth, ratably to pay the principal of all Swing Loans until paid in full,any other Obligations; and
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Administrative Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f)Applicable Law.
(iii) In each instance, so long as no Application Event of Default has occurred and is continuingoccurred, this Section 2.5(b2.10(f)(i) shall not be deemed to apply to any payment made by Borrower the Borrowers to the Administrative Agent and specified by the Administrative Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoingSection 2.10(f)(ii), “paid in full” means payment in cash in Dollars of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, Early Payment Fees and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.10(f) and any other provisions provision contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.10(f) shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except So long as otherwise provided with respect to Defaulting Lenders no Application Event has occurred and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders)is continuing, aggregate all principal and interest payments shall be apportioned ratably among the Lenders Banks (according to the unpaid principal balance of the Obligations to which such payments relate held by each LenderBank) and all payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect account or relate to any letter agreements between Agent and individual LendersBank Product Obligations) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation Banks to which a particular fee or expense relates. All payments to be made hereunder by the Borrowers shall be remitted to the Agent and all (subject to Section 2.14(f)(iii) hereof) such payments, and all proceeds of Collateral received by the Agent, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Loans outstanding and, thereafter, to the Borrowers or such other Person entitled thereto under applicable law.
(ii) At any time that an Application Event has occurred and is continuing, all payments remitted to the Agent and all proceeds of Collateral received by the Agent shall be applied as follows:
(A) first, to pay any Lender Bank Group Expenses (including cost or expense reimbursements) or indemnities then due to the Agent under the Loan Documents, until paid in full,;
(B) second, to pay any Lender Group Expenses fees or premiums then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,;
(DC) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifththird, to pay interest due in respect of all Agent Protective Advances until paid in full,;
(D) fourth, to pay the principal of all Protective Advances until paid in full;
(E) fifth, ratably to pay any Bank Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Banks under the Loan Documents, until paid in full;
(F) sixth, ratably to pay any fees or premiums then due to any of the Banks under the Loan Documents until paid in full;
(G) seventh, ratably to pay interest due in respect of the Advances Loans (other than Agent Protective Advances) and the Swing Loans, Line Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,;
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances Swing Line Loans until paid in full and full, (ii) to pay the principal of all Loans until paid in full, and (iii) to the Agent, to be held by the Agent, for the ratable benefit of Issuing Lender the Letter of Credit Bank and those Lenders having a Revolver Commitmentthe Banks, as cash collateral in an amount up to 105103% of the sum of the then extant Letter of Credit Usage Obligations plus all Letter of Credit Fees to be paid on outstanding Letters of Credit (assuming such Letters of Credit remain outstanding until paid in full,the applicable expiration dates);
(KI) eleventhninth, if an Event of Default has occurred and is continuing, ratably to pay any other Obligations (including the provision of amounts to the Agent, to be held by Agent the Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by the Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect the Bank Product Obligations); provided, that, (1) if any Bank (or its Affiliates) other than the Agent (or its Affiliates) provides Hedge Agreements to any Borrower or any of their Subsidiaries, such Bank shall report to the Agent the current exposure of the then extant Obligations Borrowers and their Subsidiaries to such Bank (and its Affiliates) under clause such Hedge Agreements (band any increase in such exposure since the last report) on a monthly basis (or less frequently as may be agreed by the Agent in writing from time to time) and whenever requested by the Agent, and if there is any increase in the exposure of the Borrowers and their Subsidiaries to such Bank (and its Affiliates) under such Hedge Agreements and such Bank fails to report such increased exposure to the Agent as required herein, then, notwithstanding anything to the contrary in this Agreement or any other Loan Document, the payment of such increased exposure shall not constitute an “Obligation” and shall not be secured by any of the Agent’s Liens, and (2) to the extent the Agent determines that the inclusion of Bank Product Obligations as “Obligations” would cause the Bank Group to be treated as an undersecured creditor in any bankruptcy or insolvency proceeding involving any Obligor, the Agent may elect to exclude Bank Product Obligations from the definition thereof), of “Obligations” on a ratable basis to the extent necessary to cause the Bank Group to be treated as a fully secured creditor in such proceeding; and
(LJ) twelfthtenth, to Borrower (to be wired to the Designated Account) Borrowers or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Application Event of Default has occurred and is continuing, this Section 2.5(b2.14(f)(i) shall not be deemed to apply to any payment made by Borrower the Borrowers to the Agent and specified by Borrower the Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoingSection 2.14(f)(ii), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceedingbankruptcy or insolvency proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.bankruptcy or insolvency proceeding
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.14(f) and any other provisions provision contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.14(f) shall control and govern.
Appears in 1 contract
Samples: Credit Agreement (Entegris Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent or Term Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent or Term Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and and, subject to the Term Loan Intercreditor Agreement, all proceeds of Collateral received by Agent, shall be applied as follows:for application in accordance with this Section 2.5(b).
(ii) Except upon the occurrence and during the continuance of an Event of Default (in which event clause (iii) below shall apply), all payments not constituting a specific payment of principal, interest, fees or other sum payable under the Loan Documents shall be applied as specified by Borrower in accordance with the terms hereof.
(iii) Upon the occurrence and during the continuance of an Event of Default, (x) all payments not constituting a specific payment of principal, interest, fees or other sum payable under the Loan Documents, (y) all proceeds of Revolver Priority Collateral received by Agent, and (z) all other proceeds not clearly identifiable as Term Priority Collateral, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Revolver Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Revolver Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Revolver Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay any Lender Group Expenses then due to Term Agent under the Loan Documents with respect to realization on the Revolver Priority Collateral, not to exceed, when combined with all amounts paid under clause sixth below, $150,000,
(F) sixth, to pay any Lender Group Expenses then due to the Term Lenders under the Loan Documents with respect to realization on the Revolver Priority Collateral, on a ratable basis, not to exceed, when combined with all amounts paid under clause fifth above, $150,000,
(G) seventh, to pay interest due in respect of all Agent Advances until paid in full,
, (H) (F) sixthsixtheighth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
, (I) (G) seventhseventhninth, to pay the principal of all Agent Advances until paid in full,
, (J) (H) eightheighthtenth, to pay the principal of all Swing Loans until paid in full,
, (K) (I) ninthnintheleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
, (L) (J) tenthtenthtwelfth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral collateralCash Collateral an amount up to 105% of the then extant Letter of Credit Usage UsageL/C Obligations until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Samples: Loan, Guaranty and Security Agreement (Gordmans Stores, Inc.)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Seasonal Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, ratably to pay the principal interest due in respect of all other Advances (other than Agent Advances Advances) and the Swing Loans until paid in full,
(H) eighth, to pay the principal of all Swing Loans Agent Advances until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrowers or their Subsidiaries in respect of Bank Products, until paid in full,
(K) eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Seasonal Advances until paid in full,
(JL) tenthtwelfth, so long as no Event of Default has occurred and is continuing, to pay the principal of all other Advances until paid in full,
(M) thirteenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Seasonal Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of Wells Fargo or its Affiliatex, xx applicable, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrowers' and their Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(N) fourteenth, to pay the principal of all other Advances until paid in full,
(O) fifteenth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitmentthe Lenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(KP) eleventh, if an Event of Default has occurred and is continuingsixteenth, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral Bank Product Obligations) until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LQ) twelfthseventeenth, to Borrower Borrowers (to be wired to the applicable Borrower's Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) : first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) , second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) , third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents Documents, until paid in full,
(D) , fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) ), under the Loan Documents, on a ratable basis, until paid in full,
(E) , fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) , sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) , seventh, to pay the principal of all Agent Advances until paid in full,
(H) , eighth, to pay the principal of all Swing Loans until paid in full,
(I) , ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) , tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver CommitmentLenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) , eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agentthen due and payable until paid in full, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) and twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Acme Communications Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Term Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loans until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(IJ) ninth, so long as no Event of Default has occurred and is continuingtenth, to pay the principal of all Advances until paid in full,
(JK) tentheleventh, if an Event of Default has occurred and is continuing, ratably (i) to pay the outstanding principal balance of all Advances the Term Loans (in the inverse order of the maturity of the installments due thereunder) until the Term Loans are paid in full full,
(L) twelfth, if an Event of Default has occurred and (ii) is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(KM) eleventh, if an Event of Default has occurred and is continuingthirteenth, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LN) twelfthfourteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(e).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Northland Cranberries Inc /Wi/)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Leapfrog Enterprises Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders)Documents, aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the Revolver Commitment or the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, payments and all proceeds other Collections (other than payments and Collections received while no Event of Collateral received by Agent, Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees) shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lendersaccounts) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest then due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest then due in respect of the Advances (other than Agent Advances) and the Swing Loans, Term Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances then due until paid in full,
(H) eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the principal of all Swing Term Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the outstanding principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% balance of the then extant Letter Term Loans (in the inverse order of Credit Usage the maturity of the installments due thereunder) until the Term Loans are paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(d).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Unified Grocers, Inc.)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate accountaccount or for the separate account of Issuing Bank, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees payable to Agent or Lenders, in either case as specified by Borrower), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay on a ratable basis, until paid in full any Collateral Custodian Fees then due to a Collateral Custodian (if one has been appointed) under its Collateral Custodian Agreement,
(B) second, to pay the Servicing Fee of Servicer and, with respect to a successor Servicer, expenses and other amounts due such successor Servicer, under the Sale and Servicing Agreement (provided, that with respect to the initial Servicer, such Fee shall only be paid so long as no Event of Default has occurred and is continuing), until paid in full,
(C) third, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(BD) secondfourth, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(CE) thirdfifth, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(DF) fourthsixth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(EG) fifthseventh, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(FH) sixtheighth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(GI) seventhninth, to pay the principal of all Agent Advances until paid in full,
(HJ) eighthtenth, to pay the principal of all Swing Loans until paid in full,
(IK) nintheleventh, so long as no Event of Default has occurred and is continuing, ratably
(i) to pay the principal of all Advances until paid in full,
(Jii) tenthto Agent, to be held by Agent, for the benefit of Issuing Bank (and for the ratable benefit of each of the Lenders that have an obligation to pay to Agent, for the account of Issuing Bank, a share of each Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Letter of Credit Disbursement as and when such disbursement occurs and, if a Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.3(b)(i), beginning with tier (A) hereof),
(iii) ratably, up to the amount (after taking into account any amounts previously paid pursuant to this clause ii) of the most recently established Bank Product Reserve Amount (but in no event in an Event amount in excess of Default has occurred and is continuing(a) five percent (5%) of the Maximum Revolver Amount at such time, ratably or (ib) $15,000,000) to pay (y) the principal Bank Product Providers based upon amounts then certified by the applicable Bank Product Provider to Agent (in form and substance satisfactory to Agent) to be due and payable to such Bank Product Providers on account of all Advances until paid in full Bank Product Obligations, and (iiz) with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitmentthe Bank Product Providers, as cash collateral an amount up (which cash collateral may be released by Agent to 105% the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any amounts due and payable with respect to Bank Product Obligations owed to the then extant Letter of Credit Usage until applicable Bank Product Provider as and when such amounts first become due and payable and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full, the cash collateral held by Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.3(b)(i), beginning with tier (A) hereof,
(KL) eleventh, if an Event of Default has occurred and is continuingtwelfth, to pay any other Obligations other than Obligations owed to Defaulting Lenders,
(including the provision of amounts M) thirteenth, ratably to Agent, pay any Obligations owed to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)Defaulting Lenders, and
(LN) twelfthfourteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.2(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.3(b) shall not be deemed to apply to any payment made by Borrower to Agent and specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.3 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.3 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Hercules Capital, Inc.)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, ratably to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Letter of Credit Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) To the extent to which the proceeds of any Collateral are realized under two or more Australian Securities, some of which contain provisions limiting the maximum amount recoverable under such Australian Security to a specified sum (a "Limited Australian Security") and some of which contain no such limit (an "Unlimited Australian Security"), those proceeds will, to the maximum extent permitted by law, be deemed to have been recovered under, and be applied in accordance with the provisions of, the Unlimited Australian Security.
(vi) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Highland Group Inc)
Apportionment and Application of Payments. On each Remittance Date, the Servicer on behalf of the Borrower shall pay for receipt by the applicable Lender no later than 11:00 a.m. (New York City time) to the following Persons, from (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided amounts on deposit in the Loan Documents Collection Account, including, all Collections, to the extent of available funds, (including letter agreements between Agent ii) Servicer Advances, and individual Lenders(iii) amounts received in respect of any Hedge Agreement during such Collection Period (the sum of such amounts described in clauses (i), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lenderii) and payments (iii), being the “Available Collections”) the following amounts in the following order of fees and expenses priority:
(other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lendersa) shall be apportioned ratably among During the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentsRevolving Credit Availability Period, and all proceeds of Collateral received by Agentin each case unless otherwise specified below, applying Available Collections (provided, that, Available Collections which do not constitute Principal Collections shall be applied as follows:to the extent available before any Available Collections constituting Principal Collections are applied):
(A) firstFIRST, to pay the Servicer, in an amount equal to any Lender Group Expenses then due to Agent under unreimbursed Servicer Advances, for the Loan Documents, until paid in full,payment thereof;
(B) secondSECOND, to pay any Lender Group Expenses then due the Servicer, in an amount equal to its accrued and unpaid Servicing Fees to the Lenders under end of the Loan Documents, on a ratable basis, until paid in full,preceding Collection Period for the payment thereof;
(C) thirdTHIRD, ratably, (A) to pay the Backup Servicer and any fees then due to Agent (for its separate accountSuccessor Servicer, after giving effect as applicable, in an amount equal to any letter agreements between Agent accrued and individual Lendersunpaid Backup Servicing Fees, in an amount not to exceed the aggregate Backup Servicing Fees provided for in the Backup Servicer Engagement Letter per annum, (B) under to the Loan Documents until paid Collateral Custodian in full,an amount equal to any accrued and unpaid Collateral Custodian Fees, in an amount not to exceed the aggregate Collateral Custodian Fees provided for in the Collateral Custodian Fee Letter per annum, and (C) to the Agent, in an amount equal to any accrued and unpaid Agent’s Fee;
(D) fourthFOURTH, to pay each Hedge Provider, any fees then due amounts owing that Hedge Provider under its respective Hedging Agreement in respect of any Hedge Transaction(s), for the payment thereof, but excluding, to the extent the Hedge Provider is not the same Person as the Agent, any or all of the Lenders (after giving effect to any letter agreements between Agent Swap Breakage and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,Indemnity Amounts;
(E) fifthFIFTH, to pay interest due the Agent for payment to each Lender, in respect of all Agent Advances until paid in full,an amount equal to any accrued and unpaid Interest and Unused Fee for such Remittance Date;
(F) sixthSIXTH, ratably first, to pay interest due in respect the Agent for payment to each Lender, an amount equal to the excess, if any, of outstanding Advances over the Advances lesser of (other than Agent Advancesi) and the Swing LoansBorrowing Base or (ii) the Facility Amount, until paid in full,pro rata;
(G) seventhSEVENTH, ratably, (A) to the Backup Servicer and any Successor Servicer, as applicable, in an amount equal to any accrued and unpaid Backup Servicing Fee and any other amounts due and owing to such Person and (B) to the Collateral Custodian in an amount equal to any accrued and unpaid Collateral Custodian Fee and any other amounts due and owing to such Person, in each case, to pay the principal of all Agent Advances until extent not paid in full,pursuant to clause THIRD above;
(H) eighthEIGHTH, to pay the principal of all Swing Loans until paid in full,each Hedge Provider, any Swap Breakage and Indemnity Amounts owing that Hedge Provider;
(I) ninth, so long as no Event of Default has occurred and is continuingNINTH, to pay the principal Agent for payment to each Lender, in the amount of all Advances until paid in full,unpaid other costs or expenses, and/or taxes (if any) owed to such Lender;
(J) tenthTENTH, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, all other amounts or Obligations then due under this Agreement or the other Loan Documents to be held by the Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitmentor any Indemnified Person, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.;
Appears in 1 contract
Samples: Loan and Security Agreement (Horizon Technology Finance Corp)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation Obligations (other than (x) payments received while no Unmatured Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees, (y) payments received from the Collateral Agent during the existence of a particular fee relates. All Default Period which relate to the payment of specific Obligations as set forth in Section 4.06(b) of the Intercreditor Agreement and (z) payments shall received from Bridge Loan Dispositions described in clause (b) of such definition which will be remitted to Agent and all such paymentsgoverned by Section 4.05 of the Intercreditor Agreement, and all proceeds of Accounts or other Collateral received by Agent, shall be applied (unless otherwise agreed by the Required Lenders) as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of Wells Fargo or its Affiliates, as applicable, as cash xxxxxteral in an amount up to the amount of the Bank Product Obligations until Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted, and (iii) to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(J) tenth, to pay the Applicable Prepayment Premium until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral Bank Product Obligations) until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable lawlaw or under the Intercreditor Agreement.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Unmatured Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b)(i) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) [Intentionally Omitted]
(vi) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees or other amounts), and all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and the Term Loan until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(IJ) ninthtenth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products until paid in full,
(K) eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JL) tenthtwelfth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as applicable, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower’s and its Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(M) thirteenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full,
(N) fourteenth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
, (KO) eleventh, if an Event of Default has occurred and is continuingfifteenth, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (bBank Product Obligations) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “until paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.and
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Highland Group Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and -39- 41 individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, so long as no Event of Default has occurred and is continuing or, if an Event of Default has occurred and is continuing and Agent agrees in its sole discretion, to pay interest due in respect of the Term Loan until paid in full (if an Event of Default has occurred or is continuing, the priority of the payment of interest on the Term Loan Amount is deferred to item thirteenth below),
(H) eighth, to pay the principal of all Agent Advances until paid in full,
(HI) eighthninth, to pay the principal of all Swing Loans until paid in full,
(IJ) ninth, so long as no Event of Default has occurred and is continuingtenth, to pay the principal of all Advances until paid in full,
(JK) tentheleventh, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Communications & Power Industries Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) firstA. FIRST, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) secondB. SECOND, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) thirdC. THIRD, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourthD. FOURTH, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifthE. FIFTH, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixthF. SIXTH, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and the Term Loan until paid in full,
(G) seventhG. SEVENTH, to pay the principal of all Agent Advances until paid in full,
H. EIGHTH, ratably to pay all principal amounts then due and payable (Hother than as a result of an acceleration thereof) eighthwith respect to the Term Loan until paid in full,
I. NINTH, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuingJ. TENTH, to pay the principal of all Advances until paid in full,
(J) tenthK. ELEVENTH, if an Event of Default has occurred and is continuing, ratably (i) to pay the outstanding principal balance of all Advances the Term Loan (in the inverse order of the maturity of the installments due thereunder), including the Term Loan PIK Amount, until the Term Loan is paid in full full,
L. TWELFTH, if an Event of Default has occurred and (ii) is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuingM. THIRTEENTH, to pay any other Obligations (including the provision of amounts to Agentuntil paid in full, and N. FOURTEENTH, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(fSECTION 2.3(h).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(bSECTION 2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 SECTION 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 SECTION 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders)Documents, aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments and all proceeds of Accounts or other Collateral received by Agent (other than payments or proceeds received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest or other specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(GF) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighthsixth, to pay the principal of all Swing Loans until paid in full,
(IG) ninthseventh, so long as no Event of Default has occurred and is continuing, ratably to pay the principal of all Advances until paid in full,
(JH) tentheighth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(KI) eleventhninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the benefit of Xxxxx Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount determined by Agent of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower's and its Permitted Discretion as the amount necessary to secure each Credit Party’s Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(K) eleventh, to pay any other Obligations under clause (bincluding Bank Product Obligations) of the definition thereof)until paid in full, and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and and, subject to clauses (ii) through (vi) below, all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) , B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) , C. third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Revolving Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances Loans (other than Agent Revolving Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Revolving Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay the principal amounts then due and owing by Borrower or its Subsidiaries in respect of all Advances Bank Products until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, ratably to pay the principal of all Loans (other than the FILO Advance) until paid in full,
(K) eleventh, so long as no Event of Default has occurred and is continuing, ratably to pay the principal of the FILO Advance until paid in full,
(L) twelfth, if an Event of Default has occurred and is continuing, ratably (i) to ratably pay the principal of all Advances Loans until paid in full (with such payments applied to all Loans other than the FILO Advance until paid in full and thereafter to the FILO Advance), (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitmentthe Lenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Xxxxxxxx’s and its Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(KM) elevenththirteenth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit PartyBorrower’s and its Subsidiaries’ obligations in respect of the then extant Obligations under clause (b) of the definition thereofBank Products), and
(LN) twelfthfourteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(f) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding)interest, default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Debt and Security Agreement
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and and, except as otherwise specifically provided in Section 2.4(b)(iii) or Section 2.4(d), all such payments, and all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Revolver A Advances (other than Agent Advances) and ), the Swing Loans, the Revolver B Advances, the Revolver C Advances, and the Revolver D Advances until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, so long as no Event of Default has occurred and is continuing to pay the principal of all Swing Loans Revolver D Advances until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, continuing to pay the principal of all Revolver C Advances until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing to pay the principal of all Revolver B Advances until paid in full,
(K) eleventh, to pay the principal of all Swing Loans until paid in full,
(L) twelfth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Revolver A Advances until paid in full,
(M) thirteenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Revolver A Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(KN) eleventhfourteenth, if an Event of Default has occurred and is continuing, to pay the principal of all Revolver D Advances until paid in full,
(O) fifteenth, if an Event of Default has occurred and is continuing, to pay the principal of all Revolver C Advances until paid in full,
(P) sixteenth, if an Event of Default has occurred and is continuing, to pay the principal of all Revolver B Advances until paid in full,
(Q) seventeenth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)Obligations, and
(LR) twelftheighteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Hudson Respiratory Care Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders)Documents, aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the Revolver Commitment or the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, payments and all proceeds other Collections (other than payments and Collections received while no Event of Collateral received by Agent, Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees) shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lendersaccounts) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest then due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest then due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances then due until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JI) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuingninth, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LJ) twelfthtenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(d).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Unified Grocers, Inc.)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees payable to Agent or Lenders, in either case as specified by Borrower), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay on a ratable basis, until paid in full any Collateral Custodian Fees then due to a Collateral Custodian (if one has been appointed) under its Collateral Custodian Agreement,
(B) second, to pay the Servicing Fee of Servicer and, with respect to a successor Servicer, expenses and other amounts due such successor Servicer, under the Sale and Servicing Agreement (provided, that with respect to the initial Servicer, such Fee shall only be paid so long as no Event of Default has occurred and is continuing), until paid in full,
(C) third, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(BD) secondfourth, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(CE) thirdfifth, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(DF) fourthsixth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(EG) fifthseventh, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(FH) sixtheighth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(GI) seventhninth, to pay the principal of all Agent Advances until paid in full,
(HJ) eighthtenth, to pay the principal of all Swing Loans until paid in full,
(IK) nintheleventh, so long as no Event of Default has occurred and is continuing, ratably
(i) to pay the principal of all Advances until paid in full,
(Jii) tenthratably, if up to the amount (after taking into account any amounts previously paid pursuant to this clause ii) of the most recently established Bank Product Reserve Amount (but in no event in an Event amount in excess of Default has occurred and is continuing(a) five percent (5%) of the Maximum Revolver Amount at such time, ratably or (ib) $15,000,000) to pay (y) the principal Bank Product Providers based upon amounts then certified by the applicable Bank Product Provider to Agent (in form and substance satisfactory to Agent) to be due and payable to such Bank Product Providers on account of all Advances until paid in full Bank Product Obligations, and (iiz) with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitmentthe Bank Product Providers, as cash collateral an amount up (which cash collateral may be released by Agent to 105% the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any amounts due and payable with respect to Bank Product Obligations owed to the then extant Letter of Credit Usage until applicable Bank Product Provider as and when such amounts first become due and payable and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full, the cash collateral held by Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.3(b)(i), beginning with tier (A) hereof,
(KL) eleventh, if an Event of Default has occurred and is continuingtwelfth, to pay any other Obligations other than Obligations owed to Defaulting Lenders,
(including the provision of amounts M) thirteenth, ratably to Agent, pay any Obligations owed to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)Defaulting Lenders, and
(LN) twelfthfourteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.2(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.3(b) shall not be deemed to apply to any payment made by Borrower to Agent and specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.3 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.3 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Hercules Technology Growth Capital Inc)
Apportionment and Application of Payments. (i) Except So long as otherwise provided with respect to Defaulting Lenders no Application Event has occurred, and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders)expressly specified herein, aggregate all principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses (other than fees or expenses that are for the Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee or expense relates. All payments to be made hereunder by the Borrowers shall (subject to the last sentence of Section 2.10(a) hereof) be remitted to the Administrative Agent and all (subject to Section 2.10(f)(iii) hereof) such payments, and all proceeds of Collateral received by the Agent, shall be applied, so long as no Application Event has occurred, to reduce the balance of the Loans and other Obligations outstanding and, thereafter, to the Administrative Borrower or such other Person entitled thereto under Applicable Law.
(ii) At any time that an Application Event has occurred, all payments remitted to the Administrative Agent and all proceeds of Collateral received by the Agent shall be applied as follows:
(A) first, to pay any Lender Group Agent Expenses (including cost or expense reimbursements) or indemnities then due to the Agent under the Loan Documents, until paid in full,;
(B) second, to pay any Lender Group Expenses fees or premiums then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,;
(DC) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifththird, to pay interest due in respect of all Agent Advances Protective Advances, pro rata, until paid in full,;
(D) fourth, to pay the principal of all Protective Advances, pro rata, until paid in full;
(E) fifth, ratably to pay any fees then due to any of the Lenders under the Loan Documents until paid in full;
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans then outstanding until paid in full,;
(G) seventh, ratably to pay the principal of all Agent Advances Loans then outstanding until paid in full,;
(H) eighth, ratably to pay the principal of all Swing Loans until paid in full,other Obligations; and
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Administrative Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f)Applicable Law.
(iii) In each instance, so long as no Application Event of Default has occurred and is continuingoccurred, this Section 2.5(b2.10(f)(i) shall not be deemed to apply to any payment made by Borrower the Borrowers to the Administrative Agent and specified by the Administrative Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoingSection 2.10(f)(ii), “paid in full” means payment in cash in Dollars of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, interest and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.10(f) and any other provisions provision contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.10(f) shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), and subject to Section 3.5(a), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, payments and all proceeds of Accounts or other Collateral received by AgentAgent (other than (i) payments received while no Default or Event of Default has occurred and is continuing and (ii) which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees or expenses), shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Revolving Credit Lenders and the Tranche B Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents Documents, until paid in full,
(D) fourth, to pay any fees then due to any or all of the Revolving Credit Lenders (after giving effect to any letter agreements between Agent and individual Revolving Credit Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) ), and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances Advances, until paid in full,
(H) eighth, to pay the principal of all Swing Loans Loans, until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuingat Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay the principal amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of all Advances Priority Bank Products, until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances Advances, until paid in full and full,
(iiK) eleventh, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage (or if any such cash collateral is subject to the Carve Out, then the amount thereof shall be increased by the amount of the Carve Out to which it is subject), until paid in full,
(KL) eleventhtwelfth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the benefit of Xxxxx Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount determined by Agent of the Bank Products Reserves established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower’s and its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations Subsidiaries’ Obligations in respect of the then extant Obligations under clause Bank Products have been paid in full or the cash collateral amount has been exhausted,
(bM) thirteenth, to pay any Tranche B Commitment Fee then due to any or all of the definition thereof)Tranche B Lenders under the Loan Documents, and
(L) twelfthon a ratable basis, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “until paid in full” means payment ,
(N) fourteenth, ratably to pay Tranche B Interest due in respect of the Tranche B Loan, until paid in full,
(O) fifteenth, ratably to pay the outstanding principal amount of the Tranche B Loan, until paid in full,
(P) sixteenth, to pay the Revolving Credit Lenders Prepayment Premium then due, until paid in full,
(Q) seventeenth, ratably to pay the Tranche B Early Termination Fee due and any other fees due to the Tranche B Lenders, until paid in full,
(R) eighteenth, to pay any other Obligations (including, without limitation, in respect of Bank Products owed by the Administrative Borrower or its Subsidiaries) due and owing to the Agent, the Swingline Lender, the Issuing Lender, the Revolving Credit Lenders and the Tranche B Lenders, until paid in full,
(S) nineteenth, to pay any Tranche C Commitment Fee then due to any or all amounts owing of the Tranche C Lenders under the Loan Documents according Documents, on a ratable basis, until paid in full,
(T) twentieth, ratably to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any pay Tranche C Interest due in respect of the foregoing would be or is allowed or disallowed Tranche C Loan, until paid in whole or in part in any Insolvency Proceeding.
full, (vU) In twenty-first, ratably to pay the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention outstanding principal amount of the parties hereto that such priority provisions Tranche C Loan, until paid in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.full,
Appears in 1 contract
Samples: Loan and Security Agreement (Ultimate Electronics Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and subject to paragraph (vi) below, all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and first the Term Loan A and then Term Loan B until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to first the Term Loan A until paid in full and then the Term Loan B until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(IJ) ninthtenth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by the Loan Parties in respect of Bank Products, until paid in full,
(K) eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JL) tenthtwelfth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of Xxxxx Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until the Loan Parties' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(M) thirteenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loans, applicable first to the Term Loan A and then to the Term Loan B until the Term Loans are paid in full,
(N) fourteenth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
, (KO) eleventh, if an Event of Default has occurred and is continuingfifteenth, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (bBank Product Obligations) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “until paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.and
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders)Documents, aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Potential Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Collateral received by Agent, shall be applied as follows:
(A1) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B2) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C3) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D4) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E5) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G6) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuingsixth, to pay the principal of all Advances until paid in full,
(J7) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuingseventh, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth8) eighth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.2(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Bankruptcy, Insolvency, or Liquidation Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Bankruptcy, Insolvency, or Liquidation Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,, Table of Contents
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and the Term Loan until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(I) ninth, to pay the principal of all Swing Loans until paid in full,
(IJ) ninthtenth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products until paid in full,
(K) eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JL) tenthtwelfth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
, and (Kiii) eleventhto Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower’s and its Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted, Table of Contents (M) thirteenth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect outstanding principal balance of the then extant Obligations under clause Term Loan (b) in the inverse order of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes maturity of the foregoing, “installments due thereunder) until the Term Loan is paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.,
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, ratably to pay the principal of all Advances until paid in full,
(JK) tentheleventh, if an Event of Default has occurred and is continuing, ratably (i) to ratably pay the principal of all Advances until paid in full and full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower’s and its Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(KL) eleventhtwelfth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit PartyBorrower’s and its Subsidiaries’ obligations in respect of the then extant Obligations under clause (b) of the definition thereofBank Products), and
(LM) twelfththirteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and and, subject to clauses (ii) through (vi) below, all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) : first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) , second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) , third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) , fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) , fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) , sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) , seventh, to pay the principal of all Agent Advances until paid in full,
(H) , eighth, to pay the principal of all Swing Loans until paid in full,
, ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (I) ninthwhich election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by any Loan Party or its Subsidiaries in respect of Bank Products, until paid in full, tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, eleventh, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of Wxxxx Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Loan Parties' and their Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted, twelfth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender Bank and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105103% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuingthirteenth, to pay any other Obligations (including the provision of amounts to AgentBank Product Obligations) until paid in full, and fourteenth, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) . Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) . In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower the Loan Parties specified by Borrower the Loan Parties to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) . For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) . In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern. [Intentionally omitted].
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Post-Petition Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and subject to paragraph (vi) below, all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) firstFIRST, to pay any Lender Group Expenses then due to Agent under the Post-Petition Loan Documents, until paid in full,
(B) secondSECOND, to pay any Lender Group Expenses then due to the Lenders under the Post-Petition Loan Documents, on a ratable basis, until paid in full,
(C) thirdTHIRD, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Post-Petition Loan Documents until paid in full,
(D) fourthFOURTH, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Post-Petition Loan Documents, on a ratable basis, until paid in full,
(E) fifthFIFTH, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixthSIXTH, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and first the Term Loan A and then Term Loan B until paid in full,
(G) seventhSEVENTH, to pay the principal of all Agent Advances until paid in full,
(H) eighthEIGHTH, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to first the Term Loan A until paid in full and then the Term Loan B until paid in full,
(I) NINTH, to pay the principal of all Swing Loans until paid in full,
(IJ) ninthTENTH, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by the Loan Parties in respect of Bank Products, until paid in full,
(K) ELEVENTH, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JL) tenthTWELFTH, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of Xxxxx Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until the Loan Parties' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(M) THIRTEENTH, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loans, applicable first to the Term Loan A and then to the Term Loan B until the Term Loans are paid in full,
(N) FOURTEENTH, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(KO) eleventh, if an Event of Default has occurred and is continuingFIFTEENTH, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral Bank Product Obligations) until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LP) twelfthSIXTEENTH, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(fSECTION 2.3(F).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(bSECTION 2.4(B) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Post-Petition Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding)interest, default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 SECTION 2.4 and other provisions contained in any other Post-Petition Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 SECTION 2.4 shall control and govern.
(vi) Notwithstanding anything to the contrary contained in this Agreement or any other Post-Petition Loan Document, all proceeds received by Agent from the sale or other disposition of, or in connection with any casualty, loss or condemnation of, any Collateral consisting of Equipment and owned Real Property Collateral shall be applied, first, to the Obligations in respect of the Term Loan A then outstanding, second, to the Obligations in respect of the Term Loan B outstanding, and the remainder of such proceeds shall be applied in accordance with SECTION 2.4(B); provided that, if the proceeds are from a disposition of the assets or Stock of any Loan Party or any insurance or condemnation which disposition or proceeds of insurance or condemnation includes both (x) Equipment and owned Real Property Collateral and (y) other assets, such proceeds shall be applied as follows and in the following order: (1) an amount equal to the book value, or if greater, an amount equal to the amount of Advances supported by Accounts Receivable and Inventory determined using the effective advance rate under the Borrowing Base against such Accounts Receivable and Inventory (determined at the time of such disposition or event resulting in such insurance or condemnation proceeds) shall be applied to the Advances until paid in full; (2) an amount equal to the book value of the Equipment and owned Real Property Collateral (determined at the time of such disposition or event resulting in such insurance or condemnation proceeds) shall be applied FIRST, to the Term Loan A until paid in full, and SECOND, to the Term Loan B until paid in full; and (3) the remaining proceeds shall be applied FIRST, to the Advances until paid in full, SECOND, to the Term Loan A until paid in full, THIRD, to the Term Loan B until paid in full, and FOURTH, to all other Obligations until paid in full.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay the principal amounts then due and owing by Borrower or its Affiliates in respect of all Advances Bank Products, until paid in full,
, (J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for pay the payment principal of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “all Advances until paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.,
Appears in 1 contract
Samples: Loan and Security Agreement (En Pointe Technologies Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders)Documents, aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Collateral Agent’s 's sole and separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments in respect of the Obligations (other than the proceeds of any Loan) shall be remitted to Administrative Agent and all such payments, whether remitted to Administrative Agent or otherwise (other than payments received while no Event of Default is continuing and which relate to the payment of principal or interest of specific Obligations), and all proceeds of any Collateral received by Agenteither Agent or any Lender, shall be applied as followsfollows (unless reinvested pursuant to Section 2.05(c)(v)):
(a) unless all of the Obligations have become or been declared due and payable:
(Ai) first, to pay any Lender Group Expenses expenses then due to Agent the Agents under the Loan Documents, on a ratable basis, until paid in full,
(Bii) second, to pay any Lender Group Expenses expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(Ciii) third, to pay any fees then due to either Agent (for its such Agent's separate account, after giving effect to any letter agreements between such Agent and individual Lenders) under the Loan Documents Documents, on a ratable basis, until paid in full,
(Div) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Collateral Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(Ev) fifth, ratably to pay interest then due in respect of the Revolving Loans and the Term Loans (unless paid-in-kind in accordance with Section 2.04(b)) until paid in full (if such proceeds are insufficient to pay all Agent Advances such interest in full, then such amount shall be applied pro rata to interest accrued and unpaid with respect to each of the Revolving Loans and Term Loans),
(vi) sixth, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loans until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(Gvii) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Revolving Loans until paid in full,
, (Iviii) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tentheighth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Administrative Agent, to be held by Agentsuch Agent in an interest bearing account with interest thereon to be credited to Borrower, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Revolving Credit Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage LC Exposure until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up full or to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant extent that such LC Exposure is terminated, it being understood that amounts will be released from such account and applied against all remaining Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, 3.03 to the fullest extent possibleof such termination and, to be in concert with each other. In full upon the event cure or waiver of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions all Events of this Section 2.5 shall control and govern.Default,
Appears in 1 contract
Samples: Credit Agreement (Avado Brands Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, payments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees) and all proceeds of Accounts or other Collateral received by Agent, Agent shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Agent ----- under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the ------ Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) C. third, to pay any fees then due to Agent (for its separate ----- account, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) D. fourth, to pay any fees then due to any or all of the ------ Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) E. fifth, to pay interest due in respect of all Agent Advances Advances, ----- until paid in full,
(F) F. sixth, ratably to pay interest due in respect of the ----- Advances (other than Agent Advances) and ), the Swing Loans, the Capital Expenditure Loan and the Term Loan until paid in full,
(G) G. seventh, to pay the principal of all Agent Advances until ------- paid in full,
H. eighth, ratably to pay all principal amounts then due and ------ payable (Hother than as a result of an acceleration thereof) eighthwith respect to the Term Loan and the Capital Expenditure Loans, until paid in full, I. ninth, to pay the principal of all Swing Loans until paid ----- in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (DSG International LTD)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relatesLenders. All payments shall be remitted to Agent and all such payments, and including all proceeds of Collateral Accounts or other Collateral, received by AgentAgent (other than payments, including proceeds of Accounts or other Collateral, received while no Default or Event of Default has occurred or is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all other Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” in respect of any amount means payment of all amounts such amount owing under the Loan Documents according to the terms thereof, including whether or not constituting loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, and whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Silicon Graphics Inc /Ca/)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate Aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) : first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) , second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) , third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents Documents, until paid in full,
(D) , fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) ), under the Loan Documents, on a ratable basis, until paid in full,
(E) , fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing LoansLoan, until paid in full,
(G) seventh, Sixth, to pay the principal of all Agent Advances the Loan until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuingSeventh, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral then due and payable until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable lawfull.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iviii) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(viv) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Acme Communications Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JK) tentheleventh, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of Wells Fargo or its Affiliates, as applicable, as xxxx collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(L) twelfth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(KM) eleventh, if an Event of Default has occurred and is continuingthirteenth, to pay any other Obligations due to the Agent or any Lender from Borrower (including the provision of amounts to Agent, to be held by Agent as cash collateral Bank Product Obligations) until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LN) twelfthfourteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Factory Card Outlet Corp)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All Except as otherwise specifically provided in SECTION 2.4(C) below, all payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which either (i) relate (or are designated by Borrower to be applied) to the payment of principal of or interest on specific Obligations or (ii) relate (or are designated by Borrower to be applied) to the payment of specific fees), and all proceeds of Accounts or other Collateral received by AgentAgent in accordance with the terms of this Agreement, shall be applied as follows:
(A) firstFIRST, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) secondSECOND, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) thirdTHIRD, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect pursuant to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourthFOURTH, to pay any fees then due to any or all of the Lenders (after giving effect pursuant to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifthFIFTH, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixthSIXTH, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and the Term Loan until paid in full,
(G) seventhSEVENTH, to pay the principal of all Agent Advances until paid in full,
(H) eighthEIGHTH, ratably to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full,
(I) NINTH, to pay the principal of all Swing Loans until paid in full,
(IJ) ninthTENTH, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby) to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(K) ELEVENTH, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JL) tenthTWELFTH, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of Wells Fargo or its Affiliates, as applicable, as caxx xxllateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(M) THIRTEENTH, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loan (in the inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full,
(N) FOURTEENTH, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105102% of the then extant Letter of Credit Usage until paid in full,
(KO) eleventh, if an Event of Default has occurred and is continuingFIFTEENTH, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral Bank Product Obligations) until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LP) twelfthSIXTEENTH, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(fSECTION 2.3(F).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(bSECTION 2.4(B)(I) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of principal of or interest or fees on specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 SECTION 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 SECTION 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Nabi Biopharmaceuticals)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements agreements, if any, between and/or among Agent and and/or individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share (other than payments received while no Unmatured Default or Event of Default has occurred and is continuing and which relate to the type payment of Commitment principal or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentsinterest of specific Obligations), and all proceeds of Accounts or other Collateral received by Agent, shall be applied (unless otherwise agreed by the Required Lenders) as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (in each case for its separate account, account and after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents Documents, until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances the Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect the principal of the Advances (other than Agent all Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances any other Obligations, until paid in full,, and
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Unmatured Default or Event of Default has occurred and is continuing, this Section 2.5(b2.3(b)(i) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) prepayable under any provision of this Agreement).
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, interest and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.3 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.3 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except So long as otherwise provided with respect to Defaulting Lenders no Application Event has occurred, and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders)expressly specified herein, aggregate all principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses (other than fees or expenses that are for the Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee or expense relates. All payments to be made hereunder by the Borrowers shall (subject to the last sentence of Section 2.10(a) hereof) be remitted to the Administrative Agent and all (subject to Section 2.10(f)(iii) hereof) such payments, and all proceeds of Collateral received by the Agent, shall be applied, so long as no Application Event has occurred, to reduce the balance of the Loans and other Obligations outstanding and, thereafter, to the Administrative Borrower or such other Person entitled thereto under Applicable Law.
(ii) At any time that an Application Event has occurred, all payments remitted to the Administrative Agent and all proceeds of Collateral received by the Agent shall be applied as follows:
(A) first, to pay any Lender Group Agent Expenses (including cost or expense reimbursements) or indemnities then due to the Agent under the Loan Documents, until paid in full,;
(B) second, to pay any Lender Group Expenses fees or premiums then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,;
(DC) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifththird, to pay interest due in respect of all Agent Advances Protective Advances, pro rata, until paid in full,;
(D) fourth, to pay the principal of all Protective Advances, pro rata, until paid in full;
(E) fifth, ratably to pay any fees then due to any of the Lenders under the Loan Documents until paid in full;
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans then outstanding until paid in full,;
(G) seventh, ratably to pay the principal of all Agent Advances Loans then outstanding until paid in full,;
(H) eighth, ratably to pay the principal of all Swing Loans until paid in full,any other Obligations; and
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Administrative Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f)Applicable Law.
(iii) In each instance, so long as no Application Event of Default has occurred and is continuingoccurred, this Section 2.5(b2.10(f)(i) shall not be deemed to apply to any payment made by Borrower the Borrowers to the Administrative Agent and specified by the Administrative Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoingSection 2.10(f)(ii), “paid in full” means payment in cash in Dollars of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, interest and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.10(f) and any other provisions provision contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.10(f) shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay the principal amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of all Advances Bank Products, until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances (other than Agent Advances) until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of Xxxxx Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(L) twelfth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitmentthe Lenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
, (KM) eleventh, if an Event of Default has occurred and is continuingthirteenth, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (bBank Product Obligations) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “until paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.and
Appears in 1 contract
Samples: Loan and Security Agreement (World Airways Inc /De/)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent Agent, individual Lenders and individual LendersBorrower), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of the Credit Party Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to ii)to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)Obligations, and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan, Guaranty and Security Agreement (Payless Shoesource Inc /De/)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments not relating to principal or interest of specific Obligations (other than payments constituting the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
, (E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (E Spire Communications Inc)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the all other Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay the principal amounts then due and owing by Borrower or its Subsidiaries in respect of all Advances Bank Products, until paid in full,
(J) tenth, if an so long as no Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the benefit of Wells Fargo or its Affiliates, as xxxxxcable, as cash collateral in an amount up to the amount determined by Agent of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower's and its Permitted Discretion as the amount necessary to secure each Credit Party’s Subsidiaries' obligations in respect of the then extant Obligations under clause (b) of Bank Products have been paid in full or the definition thereof), andcash collateral amount has been exhausted,
(L) twelfth, if an Event of Default has occurred and is continuing, to Agent to pay the principal of all Advances until paid in full,
(M) thirteenth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and the Lenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(N) fourteenth, to pay any other Obligations (including Bank Product Obligations) until paid in full, and
(O) fifteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (ia) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal of or interest on specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents Documents, until paid in full,
(C) C. third, to pay interest due in respect of all Swing Loans, until paid in full,
(D) D. fourth, to pay any fees then due to any or the principal of all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basisSwing Loans, until paid in full,
(E) E. fifth, to pay interest due in respect all outstanding reimbursement obligations for drawings made under Letters of all Agent Advances Credit, until paid in full,
(F) F. sixth, ratably to pay all interest and fees due in respect of the all Advances (other than Agent Advances) and the Swing Loans), until paid in full,
(G) G. seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay the principal all outstanding Obligations with respect to amounts then due and owing by any Loan Party to Agent or any Affiliate of all Advances Agent in respect of Bank Products, until paid in full,
(H) H. eighth, to pay all principal outstanding under outstanding Advances (other than Swing Loans) to the Borrowers that are Prime Rate Loans based on each Lender’s Pro Rata Share, until paid in full,
(I) I. ninth, to pay all principal outstanding under outstanding Advances (other than Swing Loans) to the Borrowers that are LIBOR Rate Loans and all breakage costs due in respect of such repayment based on each Lender’s Pro Rata Share or, at Administrative Borrower’s option, to fund a cash collateral deposit to Agent sufficient to pay, and with direction to pay, all such outstanding LIBOR Rate Loans on the last day of the then pending Interest Period for such LIBOR Rate Loans, (J) J. tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver CommitmentLenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
, and (ii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserves established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Loan Parties’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted, in each case, based on such Issuing Lender’s, Lender’s or Bank Product Provider’s Pro Rata Share, (K) K. eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s Loan Parties’ obligations in respect of the then extant Obligations under clause (b) of Bank Products to be paid first to Agent and its Affiliates, until paid in full, and thereafter ratably among the definition thereofother Bank Product Providers), and
(L) L. twelfth, to Borrower pay any Lender Group Expenses then due to the Lenders under the Loan Documents based on each Lender’s Pro Rata Share, until paid in full, and (M) M. thirteenth, to Borrowers (to be wired to the Designated AccountAccount or, upon three (3) Business Days’ prior written notice, as otherwise directed by Administrative Borrower) or such other Person as may be entitled thereto under applicable law.
(iib) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.2(f).
(iiic) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.3(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(ivd) For purposes of the foregoingArticle II of this Agreement, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ve) In the event of a direct conflict between the priority provisions of this Section 2.5 2.3 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.3 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and and, subject to Section 2.4(b)(iii), all such payments, and all proceeds of Accounts or other Collateral received by AgentAgent pursuant to Section 2.7(a) or other applicable provisions of this Agreement, shall be applied on the applicable date required by Section 2.8 as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Agent Advances until paid in full,
(H) eighth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, [Intentionally Omitted].
(L) twelfth, if an Event of Default has occurred and is continuing, to pay any other Obligations the principal of all Agent Advances until paid in full,
(including M) thirteenth, if an Event of Default has occurred and is continuing, to pay the provision principal of amounts all Swing Loans until paid in full,
(N) fourteenth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent Agent, for the benefit of Wxxxx Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount determined by Agent of the Bank Product Reserves established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower’s and its Permitted Discretion as the amount necessary to secure each Credit Party’s Subsidiaries’ obligations in respect of the then extant Obligations under clause Bank Products have been paid in full or the cash collateral amount has been exhausted, (bO) of the definition thereof)fifteenth, and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no if an Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed continuing to apply to any payment by Borrower specified by Borrower to be for pay the payment principal of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “all Advances until paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.,
Appears in 1 contract
Samples: Loan and Security Agreement (Orbital Sciences Corp /De/)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements agreements, if any, between Agent and and/or among Agent, Specified Appointee and/or individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's or Specified Appointee's separate account, after giving effect to any letter agreements agreements, if any, between Agent and and/or among Agent, Specified Appointee and/or individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All Except as otherwise specifically provided in paragraph (b)(iii) below or Sections 2.4(c), 2.4(d), 2.4(e) or 2.4(f), all payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which payments relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees or other amounts), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent and the Specified Appointee under the Loan Documents, pro rata, based on the amounts outstanding to each of the Agent and the Specified Appointee, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, pro rata, based on a ratable basisthe amounts outstanding to each Lender, until paid in full,
(C) third, to pay any fees then due to Agent and the Specified Appointee (in each case for its their separate accountaccounts, and in the case of the Agent, after giving effect to any letter agreements between Agent and individual Revolver A Loan Lenders) under the Loan Documents Documents, until paid in full,
(D) fourth, to pay any fees then due to any or all of the Revolver A Loan Lenders (after giving effect to any letter agreements between Agent and individual Revolver A Loan Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, so long as no Event of Default has occurred and is continuing or if an Event of Default has occurred and is continuing and to the extent that the Required Revolver A Lenders agree, in their sole discretion, that any fees then due to any and all of the Revolver B Loan Lenders under the Loan Documents, may be paid pursuant to this item "fifth", to payment thereof, until paid in full (if an Event of Default has occurred and is continuing and to the extent that the Required Revolver A Lenders have not agreed that the fees then due to any or all of the Revolver B Loan Lenders may be paid pursuant to this item "fifth", the priority of the payment of such fees then due to such Revolver B Loan Lenders is deferred to item "eighteenth" below),
(F) sixth, so long as no Event of Default has occurred and is continuing or if an Event of Default has occurred and is continuing and to the extent that the Required Revolver A Lenders agree, in their sole discretion, that any fees then due to any and all of the Additional Loan Lenders under the Loan Documents, may be paid pursuant to this item "sixth", to payment thereof, until paid in full (if an Event of Default has occurred and is continuing and to the extent the Required Revolver A Lenders have not agreed that the fees then due to any or all of the Additional Loan Lenders may be paid pursuant to this "sixth", the priority of the payment of such fees then due to the Additional Loan Lenders is deferred to item "twenty-second" below),
(G) seventh, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(FH) sixtheighth, ratably to pay interest due in respect of the Revolver A Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, other than an Event of Default arising under Section 8.2 solely as a result of the failure to pay the principal of all Advances until paid in full,
(J) tenthcomply with Sections 6.2, 6.3 or 6.4, or, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if other than an Event of Default has occurred arising under Section 8.2 solely as a result of the failure to comply with Sections 6.2, 6.3 or 6.4, and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as extent that the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.Required
Appears in 1 contract
Samples: Loan and Security Agreement (Abraxas Petroleum Corp)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Collateral Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Collateral Agent’s separate account, after giving effect to any letter agreements between Collateral Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Collateral Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Collateral Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Collateral Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Collateral Agent (for its separate accountaccounts, after giving effect to any letter agreements between Collateral Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Collateral Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Collateral Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Collateral Agent Advances) ), and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Collateral Agent Advances until paid in full,
(H) eighthninth, to pay the principal of all Swing Loans until paid in full,
(I) ninthtenth, so long as no Event of Default has occurred and is continuing, and at Collateral Agent’s election (which election Collateral Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JK) tenthtwelfth, so long as no Event of Default has occurred and is continuing, to pay all Acceptances when due until paid in full,
(L) thirteenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Collateral Agent, to be held by Collateral Agent, for the benefit of Agent or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower’s and its Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(M) fourteenth, if an Event of Default has occurred and is continuing, to Collateral Agent, to be held by Collateral Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver CommitmentLenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage Usage, until paid in full,
(KN) eleventh, if an Event of Default has occurred and is continuingfifteenth, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral Bank Product Obligations) until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LO) twelfthsixteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Collateral Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) C. third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) D. fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) E. fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) F. sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) G. seventh, to pay the principal of all Agent Advances until paid in full,
(H) H. eighth, to pay the principal of all Swing Loans until paid in full,
(I) I. ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) , J. tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and and, subject to the Term Loan Intercreditor Agreement, all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law. provided that, for the avoidance of doubt, notwithstanding any other provision of any Loan Document to the contrary, no payment received directly or indirectly from any Credit Party that is not a Qualified ECP Guarantor shall be applied directly or indirectly by the Agent or otherwise to the payment of any Excluded Hedging Obligations.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Samples: Loan, Guaranty and Security Agreement (Gordmans Stores, Inc.)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Term Loan Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and and, subject to the Intercreditor Agreement, all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Term Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Term Loans then due until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)Obligations, and
(LJ) twelfthtenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law, Provided that for the avoidance of doubt, notwithstanding any other provision of any Loan Document to the contrary, no payment received directly or indirectly from any Credit Party that is not a Qualified ECP Guarantor shall be applied directly or indirectly by the Agent or otherwise to the payment of any Excluded Hedging Obligations.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and and, subject to clauses (ii) through (vi) below, all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) , B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) , C. third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) D. fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) E. fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) F. sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) G. seventh, to pay the principal of all Agent Advances until paid in full,
(H) H. eighth, to pay the principal of all Swing Loans until paid in full,
, I. ninth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (I) ninthwhich election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by any Loan Party or its Subsidiaries in respect of Bank Products, until paid in full, J. tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i1) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to the Agent and all such payments, and (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal of or interest on specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifthC. third, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighthD. fourth, to pay the principal of all Swing Loans Loans, until paid in full,
E. fifth, to pay all outstanding reimbursement obligations for drawings made under Letters of Credit, until paid in full,
F. sixth, to pay all interest and fees due in respect of all Advances (I) ninthother than Swing Loans), until paid in full,
G. seventh, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay all outstanding Obligations with respect to amounts then due and owing by any Loan Party to the principal Agent or any Affiliate of all Advances the Agent in respect of Bank Products, until paid in full,
H. eighth, to pay all principal outstanding under outstanding Advances (Jother than Swing Loans) to the Borrowers that are Prime Rate Loans based on each Lender’s Pro Rata Share, until paid in full,
I. ninth, to pay all principal outstanding under outstanding Advances (other than Swing Loans) to the Borrowers that are LIBOR Rate Loans and all breakage costs due in respect of such repayment based on each Lender’s Pro Rata Share or, at the Administrative Borrower’s option, to fund a cash collateral deposit to the Agent sufficient to pay, and with direction to pay, all such outstanding LIBOR Rate Loans on the last day of the then pending Interest Period therefore,
J. tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver CommitmentLenders, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (ii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserves established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Loan Parties’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted, in each case, based on such Issuing Lender’s, Lender’s or Bank Product Provider’s Pro Rata Share,
(K) K. eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s Loan Parties’ obligations in respect of the then extant Obligations under clause (b) of Bank Products to be paid first to the definition thereofAgent and its Affiliates, until paid in full, and thereafter ratably among the other Bank Product Providers), and,
(L) L. twelfth, to Borrower pay any Lender Group Expenses then due to the Lenders under the Loan Documents based on each Lender’s Pro Rata Share, until paid in full,
M. thirteenth, to Borrowers (to be wired to the Designated AccountAccount or, upon three (3) Business Days’ prior written notice, as otherwise directed by the Administrative Borrower) or such other Person as may be entitled thereto under applicable law.
(ii2) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.2(f).
(iii3) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.3(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv4) For purposes of the foregoingArticle II of this Agreement, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v5) In the event of a direct conflict between the priority provisions of this Section 2.5 2.3 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.3 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders)Documents, aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All So long as no Event of Default has occurred and is continuing, Borrower shall remit all payments shall be remitted to Agent as and when due hereunder for application to the Obligations as described above. During the continuance of any Event of Default, all such payments, amounts in the Borrower Accounts and all proceeds of Accounts or other Collateral received by Agent, Agent shall be applied by Agent as follows:
(A) first, to pay on a ratable basis, until paid in full any Collateral Custodian Fees then due to the Collateral Custodian under the Collateral Custodian Agreement;
(B) second, any amounts required to be paid by Borrower to maintain its legal existence and franchises (not to exceed $1,000 per annum) and to pay the Servicing Fee of Servicer and, with respect to any successor Servicer, expenses and other amounts due such successor Servicer under the Sale and Servicing Agreement or any successor agreement thereto, until paid in full;
(C) third, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,;
(BD) secondfourth, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,;
(E) fifth, to pay interest and fees due in respect of all Agent Advances Advances, until paid in full,;
(F) sixth, ratably to pay interest and fees due in respect of the Advances (other than Agent Advances) and the Swing Loans), until paid in full,;
(G) seventh, to pay the outstanding principal of all Agent Advances until paid in full,
(H) eighth, subject to the proviso at the end of this clause (H), ratably
1) to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the outstanding principal of all Advances until paid in full,, and
2) ratably, up to the amount (Jafter taking into account any amounts previously paid pursuant to this clause ii) tenth, if of the most recently established Bank Product Reserve Amount (but in no event in an Event amount in excess of Default has occurred and is continuing, ratably five percent (i5%) of the Maximum Revolver Amount at such time) to pay (y) the principal Bank Product Providers based upon amounts then certified by the applicable Bank Product Provider to Agent (in form and substance satisfactory to Agent) to be due and payable to such Bank Product Providers on account of all Advances until paid in full Bank Product Obligations, and (iiz) with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitmentthe Bank Product Providers, as cash collateral (which cash collateral may be released by Agent to the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any amounts due and payable with respect to Bank Product Obligations owed to the applicable Bank Product Provider as and when such amounts first become due and payable and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full, the cash collateral held by Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.3(b)(i), beginning with tier (A) hereof; provided, however, that upon satisfaction of the conditions described in the definition of “Permitted RIC Distributions,” Borrower may request from Agent, and Agent shall release to Borrower, funds in the Custodial Account for the purposes of making a Permitted RIC Distribution immediately prior to the payment of the amounts described in this clause (H), except that during the Amortization Period any such release to Borrower for the purposes of making a Permitted RIC Distribution shall occur only after an amount up of Advances equal to 105% of the then extant Letter of Credit Usage until applicable Required Amortization Amount shall have already been paid in full,to the Lenders pursuant to this clause (H);
(KI) eleventh, if an Event of Default has occurred and is continuingninth, to pay any other Obligations other than Obligations owed to Defaulting Lenders, (including the provision of amounts J) tenth, ratably to Agent, pay any Obligations owed to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)Defaulting Lenders, and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Hercules Capital, Inc.)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements agreements, if any, between and/or among Agent and and/or individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having (other than (x) payments received while no Unmatured Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees, (y) payments received from the Collateral Agent during the existence of a Pro Rata Share Default Period (as such term is defined in the Intercreditor Agreement) which relate to the payment of specific Obligations as set forth in Section 4.06(b) of the type Intercreditor Agreement and (z) payments received in respect of Commitment or Obligation an Agent Directed Sale, which will be governed by Section 4.05 of the Intercreditor Agreement to which a particular fee relates. All payments shall be remitted to Agent and all such paymentsthe extent inconsistent with this Section 2.3(b)(i), and all proceeds of Accounts or other Collateral received by Agent, shall shall, subject to the terms of the Intercreditor Agreement and Sections 2.3(b)(v), be applied (unless otherwise agreed by the Required Lenders) as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (in each case for its separate account, account and after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents Documents, until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances the Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect the principal of the Advances (other than Agent all Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances applicable Prepayment Premium (if any), until paid in full,
(H) eighth, to pay the principal of all Swing Loans any other Obligations, until paid in full,, and
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable lawlaw or under the Intercreditor Agreement.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Unmatured Default or Event of Default has occurred and is continuing, this Section 2.5(b2.3(b)(i) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, interest and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.3 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.3 shall control and govern; provided, however, notwithstanding the foregoing or anything else to the contrary contained in this Agreement, if Borrower, any Guarantor or any member of the Lender Group is required by the terms of the Intercreditor Agreement to make, apply or retain any payment or proceeds, or to take any other action or refrain from taking any other action, in a manner which but for this proviso would conflict with the terms of this Agreement (including this Section 2.3), then Borrower, such Guarantor or such member of the Lender Group, as the case may be, shall comply with the terms of the Intercreditor Agreement without regard to the conflicting terms of this Agreement (but only to the extent of such conflict).
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) A. first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) C. third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) D. fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) E. fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) F. sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and the Term Loan until paid in full,
(G) G. seventh, to pay the principal of all Agent Advances until paid in full,
H. eighth, to pay the principal amounts then due and payable (Hother than as a result of an acceleration thereof) eighthwith respect to the Term Loan until paid in full,
I. ninth, to pay the principal of all Swing Loans until paid in full,
J. tenth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (I) ninthwhich election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by any Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
K. eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenthL. twelfth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of Xxxxx Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrowers’ and their Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
M. thirteenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loan (in inverse order of the maturity of the installments due thereunder) until the Term Loan is paid in full,
N. fourteenth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuingO. fifteenth, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (bBank Product Obligations) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “until paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.and
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relatesLenders. All payments shall be remitted to Agent and all such payments, and including all proceeds of Collateral Accounts or other Collateral, received by AgentAgent (other than payments, including proceeds of Accounts or other Collateral, received while no Default or Event of Default has occurred or is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all other Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(L) twelfth, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " in respect of any amount means payment of all amounts such amount owing under the Loan Documents according to the terms thereof, including whether or not constituting loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, and whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Silicon Graphics Inc /Ca/)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and the Capital Expenditures Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay the principal amounts then due and owing by Borrower or its Subsidiaries in respect of all Advances Bank Products until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, ratably to pay the principal of all Advances and Capital Expenditure Loans until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, ratably (i) to ratably pay the principal of all Advances and Capital Expenditure Loans until paid in full and full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(KL) eleventhtwelfth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s Borrower's and its Subsidiaries' obligations in respect of the then extant Obligations under clause (b) of the definition thereofBank Products), and
(LM) twelfththirteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between any Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for any Agent’s separate account, after giving effect to any letter agreements between any Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Administrative Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Administrative Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to any Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent Agents (for its their separate accountaccounts, after giving effect to any letter agreements between any Agent and individual Lenders) under the Loan Documents Documents, until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between any Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full, provided that, if an Event of Default has occurred and is continuing, the priority of the payment of any fee payable to any Lender in respect of its Revolver B Commitment or Term Loan shall, unless the Required Revolver A Lenders agree in their sole discretion to forgo deferring such payment, be deferred to item “fourteenth” below,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the A Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, so long as no Event of Default has occurred and is continuing or, if an Event of Default has occurred and is continuing and the Required Revolver A Lenders agree in their sole discretion, to pay interest due in respect of the principal of all Agent B Advances and Term Loan, until paid in fullfull (if an Event of Default has occurred and is continuing and the Required Revolver A Lenders do not agree to permit payment of interest on the Term Loan, the priority of the payment of interest on (i) the B Advances and Term Loan is deferred to item “fifteenth” below),
(H) eighth, to pay the principal of all Swing Loans Agent Advances, until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing or, if an Event of Default has occurred and is continuing and the Required Revolver A Lenders agree in their sole discretion, to pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan, until paid in full (if an Event of Default has occurred and is continuing, and the Required Revolver A Lenders do not agree to permit payment of principal amounts then due and payable on the Term Loan the priority of the payment of principal then due and payable with respect to the Term Loan is deferred to item “sixteenth” below),
(J) tenth, to pay the principal of all Swing Loans, until paid in full,
(K) eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances A Advances, until paid in full,
(JL) tenthtwelfth, so long as no Event of Default has occurred and is continuing or, if an Event of Default has occurred and is continuing and the Required Revolver A Lenders agree in their sole discretion, to pay the principal of all B Advances, until paid in full (if an Event of Default has occurred and is continuing and the Required Revolver A Lenders do not agree to permit payment of principal on the B Advances, priority of the payment of principal with respect to the B Advances is deferred to item “sixteenth” below)
(M) thirteenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances A Advances, until paid in full and full, (ii) to Administrative Agent, to be held by Administrative Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver A Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(KN) eleventhfourteenth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations fees due in respect of the then extant Obligations under clause Revolver B Commitments and Term Loan, until paid in full, (bO) fifteenth, if an Event of Default has occurred and is continuing, to pay interest due in respect of the definition thereof)B Advances and Term Loan, until paid in full,
(P) sixteenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the B Advances and Term Loan, until paid in full,
(Q) seventeenth, to pay any other Obligations until paid in full, and
(LR) twelftheighteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Administrative Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(e).
(iii) In each instance, so long as no Default or Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of Section 2.4(b) (i) (other than clause (Q)), “paid in full” means payment of all amounts owing under the foregoingLoan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, except to the extent that default or overdue interest (but not any other interest) and loan fees, each arising from or related to a default, are disallowed in any Insolvency Proceeding; provided, however, that for the purposes of clause (Q), “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Northland Cranberries Inc /Wi/)
Apportionment and Application of Payments. (ia) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, so long as no Event of Default has occurred and is continuing, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, so long as no Event of Default has occurred and is continuing, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, so long as no Event of Default has occurred and is continuing, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents Documents, until paid in full,
(D) fourth, so long as no Event of Default has occurred and is continuing, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, so long as no Event of Default has occurred and is continuing, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, so long as no Event of Default has occurred and is continuing, ratably to pay interest due in respect of the Advances (other than Agent Advances) ), and the Swing Loans, until paid in full,
(G) seventh, so long as no Event of Default has occurred and is continuing, to pay interest due in respect of the principal of all Agent Advances Term Loan, until paid in full,
(H) eighth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Swing Loans Agent Advances, until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances Swing Loans, until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing and Borrower is required to make a mandatory prepayment to the Term Loan pursuant to Section 2.4(c), to pay the principal of the Term Loan in the amount then due under Section 2.4(c),
(K) eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances, until paid in full,
(L) twelfth, so long as no Event of Default has occurred and is continuing, to pay all principal amounts then due and payable with respect to the Term Loan, until paid in full,
(M) thirteenth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrowers or their Subsidiaries in respect of Bank Products, until paid in full,
(N) fourteenth, so long as no Event of Default has occurred and is continuing, to pay any other Obligations, until paid in full,
(O) fifteenth, so long as no Event of Default has occurred and is continuing, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law,
(P) sixteenth, if an Event of Default has occurred and is continuing, to pay any Lender Group Expenses and fees due to Agent (for its separate account, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents, until paid in full,
(Q) seventeenth, if an Event of Default has occurred and is continuing, to pay any Lender Group Expenses and fees (other than the Applicable Prepayment Premium) due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders), under the Loan Documents, on a ratable basis, until paid in full,
(R) eighteenth, if an Event of Default has occurred and is continuing, ratably to pay interest due in respect of all Agent Advances, Advances and Swing Loans, until paid in full,
(iS) nineteenth, if an Event of Default has occurred and is continuing, ratably to pay the principal of all Agent Advances, Advances and Swing Loans, until paid in full,
(T) twentieth, if an Event of Default has occurred and is continuing, ratably to Agent, to be held by Agent, for the benefit of Wells Fargo or its Affiliates, as applicable, as caxx xxllateral in an amount up to the amount of the Bank Product Reserve established at the time of the establishment of the Bank Product, and not in contemplation of the subject Event of Default until Borrowers' and their Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(U) twenty-first, if an Event of Default has occurred and (ii) is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage Usage, until paid in full,
(KV) eleventhtwenty-second, if an Event of Default has occurred and is continuing, to pay any fees due in connection with the Term Loan (after giving effect to any letter agreements between Agent and individual Lenders), under the Loan Documents, on a ratable basis, until paid in full,
(W) twenty-third, if an Event of Default has occurred and is continuing, to pay interest due in respect of the Term Loan, until paid in full,
(X) twenty-fourth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loan, until the Term Loan is paid in full,
(Y) twenty-fifth, if an Event of Default has occurred and is continuing, to pay Bank Product Obligations, until paid in full,
(Z) twenty-sixth, if an Event of Default has occurred and is continuing to pay the Applicable Prepayment Premium, until paid in full,
(AA) twenty-seventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to AgentObligations, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LBB) twelfthtwenty-eighth, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iib) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iiic) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to (A) any mandatory prepayment of Obligations pursuant to Section 2.4(c), which payment shall be applied in accordance with the provisions thereof, or (B) any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(ivd) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(ve) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements -42- between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Revolving Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances Loans (other than Agent Revolving Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Revolving Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent’s election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay the principal amounts then due and owing by Borrower or its Subsidiaries in respect of all Advances Bank Products until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, ratably to pay the principal of all Loans until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, ratably (i) to ratably pay the principal of all Advances Loans until paid in full and full, (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full, and (iii) to Agent, to be held by Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Product Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower’s and its Subsidiaries’ obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(KL) eleventhtwelfth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and-43-
(LM) twelfththirteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(f) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
(vi) Notwithstanding anything else in this Agreement or the other Loan Documents to the contrary, each of the Lenders agrees that following the occurrence and during the continuance of any Event of Default, proceeds of Borrowing Base Collateral shall be applied first to the Revolving Obligations until such Obligations are paid in full and thereafter to the Term Loan Obligations and proceeds of any other Collateral shall be applied first to the Term Loan Obligations until such Obligations are paid in full.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and and, subject to Section 2.4(b)(iii), all such payments, and all proceeds of Accounts or other Collateral received by AgentAgent pursuant to Section 2.7(a) or other applicable provisions of this Agreement, shall be applied on the applicable date required by Section 2.8 as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) ), the Swing Loans and the Swing Loans, Term Loan until paid in full,
(G) seventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Agent Advances until paid in full,
(H) eighth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) tenth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JK) tentheleventh, so long as no Event of Default has occurred and is continuing or, if an Event of Default has occurred and is continuing and Agent agrees in its sole discretion, to ratably pay all principal amounts then due and payable (other than as a result of an acceleration thereof) with respect to the Term Loan until paid in full (if an Event of Default has occurred and is continuing and Agent, in its sole discretion, does not agree to the order of payment set forth in this item "eleventh," the priority of the payment of principal then due with respect to the Term Loan is deferred to item "seventeenth" below),
(L) twelfth, if an Event of Default has occurred and is continuing, ratably to pay the principal of all Agent Advances until paid in full,
(iM) thirteenth, if an Event of Default has occurred and is continuing, to pay the principal of all Swing Loans until paid in full,
(N) fourteenth, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the benefit of Xxxxx Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount of the Bank Product Reserves established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(O) fifteenth, if an Event of Default has occurred and is continuing to pay the principal of all Advances until paid in full full,
(P) sixteenth, if an Event of Default has occurred and (ii) is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105110% of the then extant Letter of Credit Usage until paid in full,
(KQ) eleventhseventeenth, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of the Term Loan until the Term Loan is paid in full,
(R) eighteenth, to pay any other Obligations due and payable (including the provision of amounts to Agent, to be held by Agent as cash collateral Bank Product Obligations) until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LS) twelfthnineteenth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so So long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b)(i) shall not be deemed to apply to (A) any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this AgreementAgreement and (B) any prepayment permitted or required pursuant to Section 2.2.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, in each case, to the extent included in the Obligations, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Orbital Sciences Corp /De/)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenderslenders, if any), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All So long as no Event of Default has occurred and is continuing, Borrower shall remit all payments shall be remitted to Agent as and when due hereunder for application to the Obligations as described above. During the continuance of any Event of Default, all such payments, amounts in the Borrower Accounts and all proceeds of Accounts or other Collateral received by Agent, Agent shall be applied by Agent as follows:
(A) first, to pay on a ratable basis, until paid in full any Collateral Custodian Fees then due to Collateral Custodian under the Collateral Custodian Agreement;
(B) second, to pay the Servicing Fee of Servicer and, with respect to a successor Servicer or the Special Servicer, as applicable, expenses and other amounts due to such successor Servicer under the Sale and Servicing Agreement or Special Servicer Fees and Expenses due to the Special Servicer under the applicable Intercreditor Agreement, respectively (provided, that with respect to the initial Servicer, such Servicing Fee shall only be paid so long as no Event of Default has occurred and is continuing), until paid in full;
(C) third, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,;
(BD) secondfourth, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,;
(CE) thirdfifth, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,;
(DF) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifthsixth, to pay interest and fees due in respect of all Agent Advances Advances, until paid in full,;
(FG) sixthseventh, ratably to pay interest and fees due in respect of the Advances (other than Agent Advances) and the Swing Swingline Loans, until paid in full,;
(GH) seventheighth, to pay the outstanding principal of all Agent Advances until paid in full,
(HI) eighthninth, subject to the proviso at the end of this clause (I), ratably
1) to pay the outstanding principal of all Swing Swingline Loans until paid in full,
(I2) ninth, so long as no Event of Default has occurred and is continuing, to pay the outstanding principal of all Revolving Advances until paid in full,, and
3) ratably, up to the amount (Jafter taking into account any amounts previously paid pursuant to this clause 3) tenth, if of the most recently established Bank Product Reserve Amount (but in no event in an Event amount in excess of Default has occurred and is continuing, ratably five percent (i5%) of the Maximum Revolver Amount at such time) to pay (y) the principal Bank Product Providers based upon amounts then certified by the applicable Bank Product Provider to Agent (in form and substance satisfactory to Agent) to be due and payable to such Bank Product Providers on account of all Advances until paid in full Bank Product Obligations, and (iiz) with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitmentthe Bank Product Providers, as cash collateral (which cash collateral may be released by Agent to the applicable Bank Product Provider and applied by such Bank Product Provider to the payment or reimbursement of any amounts due and payable with respect to Bank Product Obligations owed to the applicable Bank Product Provider as and when such amounts first become due and payable) and, if and at such time as all such Bank Product Obligations are paid or otherwise satisfied in full, the cash collateral held by Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(i), beginning with tier (A) hereof; provided, however, that, at any time, upon satisfaction of the conditions described in the definition of “Permitted Restricted Payments” applicable to Permitted Tax Distributions at such time, Borrower may request from Agent, and Agent shall release to Borrower, funds in the Custodial Account for the purposes of making a Permitted Tax Distribution immediately prior to the payment of the amounts described in this clause (I), except that during the Amortization Period any such release to Borrower for the purposes of making a Permitted Tax Distribution shall occur only after an amount up of Advances equal to 105% of the then extant Letter of Credit Usage until applicable Required Amortization Amount shall have already been paid in fullto Lenders pursuant to this clause (I);
(J) tenth, to pay any other Obligations other than Obligations owed to Defaulting Lenders,
(K) eleventh, if an Event of Default has occurred and is continuing, ratably to pay any other Obligations (including the provision of amounts owed to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)Defaulting Lenders, and
(L) twelfth, to Borrower (to be wired to the Designated Custodial Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.3(b) shall not be deemed to apply to any payment made by Borrower to Agent and specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.3 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.3 shall control and govern.
Appears in 1 contract
Samples: Loan and Security Agreement (Hercules Capital, Inc.)
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Revolver Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, ratably to pay interest due in respect of all Agent the Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JG) tenthseventh, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to ii)to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(KH) eleventheighth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(LI) twelfthninth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(c).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:follows or in such other order as all Lenders may agree (without notice to or approval of the Borrowers):
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(I) ninth, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver CommitmentLender, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent Agent, for the benefit of Xxxxx Fargo or its Affiliates, as applicable, as cash collateral in an amount up to the amount determined by Agent of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Administrative Borrower's and its Permitted Discretion as the amount necessary to secure each Credit Party’s Subsidiaries' obligations in respect of the then extant Obligations under clause (b) of Bank Products have been paid in full or the definition thereof), andcash collateral amount has been exhausted,
(L) twelfth, to Borrower pay any other Obligations (including Bank Product Obligations) until paid in full, and (M) thirteenth, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(d).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) firstFIRST, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) secondSECOND, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) thirdTHIRD, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourthFOURTH, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifthFIFTH, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixthSIXTH, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventhSEVENTH, to pay the principal of all Agent Advances until paid in full,
(H) eighthEIGHTH, to pay the principal of all Swing Loans until paid in full,
(I) ninthNINTH, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) TENTH, so long as an Event of Default has not occurred and is not continuing, to pay the principal of all Advances until paid in full,
(K) ELEVENTH, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JL) tenthTWELFTH, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitmentthe applicable Bank Product Providers, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower's and its Permitted Discretion as the amount necessary to secure each Credit Party’s Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(M) THIRTEENTH, to pay any other Obligations under clause (bincluding Bank Product Obligations) of the definition thereof)until paid in full, and
(LN) twelfthFOURTEENTH, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(fSECTION 2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(bSECTION 2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 SECTION 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 SECTION 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including in letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All Except (x) as otherwise specifically provided in Section 2.4(c) below, (y) if an Event of Default shall have occurred and be continuing or would result after giving effect to any such payment (in which case, such payments shall be applied in the manner set forth in an agreement among Agent and Lenders), or (z) with respect to payments of principal or interest of specific Obligations or which relate to the payment of specific fees or other amounts, all payments shall be remitted to Agent and all such payments, and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances until paid in full,
(F) sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(HB) eighthsecond, ratably to pay all principal amounts then due and payable with respect to the Term Loans until paid in full,
(C) third, to pay the principal of all Swing Loans until paid in full,
(ID) ninthfourth, so long as no Event at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of Default has occurred and is continuingBank Products until paid in full,
(E) fifth, to pay the principal of all Revolver A Advances until paid in full,
(JF) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuingsixth, to pay any other Obligations then due and payable (including the provision of amounts to Agent, to be held by Agent as cash collateral Bank Product Obligations) until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LG) twelfthseventh, to Borrower Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixth, ratably to pay interest due in respect of the all other Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventh, to pay the principal of all Agent Advances until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay the principal amounts then due and owing by Borrowers or their Subsidiaries in respect of all Advances Bank Products, until paid in full,
(J) tenth, if an so long as no Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the benefit of Wells Fargo or its Affiliates, as applicable, as cash cxxxxxeral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrowers' and their Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(L) twelfth, to pay any the principal of all other Obligations Advances and the Term Loan until paid in full,
(including the provision M) thirteenth, if an Event of amounts Default has occurred and is continuing, to Agent, to be held by Agent Agent, for the ratable benefit of Issuing Lender and the Lenders, as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect 105% of the then extant Letter of Credit Usage until paid in full,
(N) fourteenth, to pay any other Obligations under clause (bincluding Bank Product Obligations) of the definition thereof)until paid in full, and
(LO) twelfthfifteenth, to Borrower Borrowers (to be wired to the applicable Borrower's Designated Account) or such other Person entitled thereto under applicable law. Notwithstanding the foregoing to the contrary provided that no Default or Event of Default then exists, any payment which the Borrowers designate as being for principal and/or interest on the Term Loan shall be applied against the Term Loan Obligations.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f2.3(h).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b2.4(b) shall not be deemed to apply to any payment by Borrower Borrowers specified by Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relatesLenders. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) firstFIRST, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) secondSECOND, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) thirdTHIRD, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourthFOURTH, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) fifthFIFTH, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixthSIXTH, ratably to pay interest due in respect of the Advances (other than Agent Advances) ), and the Swing Loans, until paid in full,
(G) seventhSEVENTH, to pay the principal of all Agent Advances until paid in full,
(H) eighthEIGHTH, to pay the principal of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuingNINTH, to pay the principal of all Advances (other than Agent Advances), until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuingTENTH, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LK) twelfthELEVENTH, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(fSECTION 2.3(H).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(bSECTION 2.4(B) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) Notwithstanding anything to the contrary, the Applicable Prepayment Premium shall not be paid to any Lender until all other Obligations have been paid in full.
(vi) In the event of a direct conflict between the priority provisions of this Section 2.5 SECTION 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 SECTION 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Default or Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) : A. first, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) , B. second, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) , C. third, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and the individual Lenders) under the Loan Documents until paid in full,
(D) , D. fourth, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) , E. fifth, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) , F. sixth, ratably to pay interest due in respect of the Advances (other than Agent Advances) and ), the Swing Loans, and the Term Loan until paid in full,
(G) , G. seventh, to pay the principal of all Agent Advances until paid in full,
, H. eighth, to pay the principal amounts then due and payable (Hother than as a result of an acceleration thereof) eighthwith respect to the Term Loan until paid in full, I. ninth, to pay the principal of all Swing Loans until paid in full,
, J. tenth, so long as no Event of Default has occurred and is continuing, and at Agent's election (I) ninthwhich election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by any Borrower or its Subsidiaries in respect of Bank Products, until paid in full, K. eleventh, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full and (ii) to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (i) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in the Loan Documents (including letter agreements between Agent and individual Lenders), aggregate principal and interest payments shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s 's separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such paymentspayments (other than payments received while no Event of Default has occurred and is continuing and which relate to the payment of principal or interest of specific Obligations or which relate to the payment of specific fees), and all proceeds of Accounts or other Collateral received by Agent, shall be applied as follows:
(A) firstFIRST, to pay any Lender Group Expenses then due to Agent under the Loan Documents, until paid in full,
(B) secondSECOND, to pay any Lender Group Expenses then due to the Lenders under the Loan Documents, on a ratable basis, until paid in full,
(C) thirdTHIRD, to pay any fees then due to Agent (for its separate accountaccounts, after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents until paid in full,
(D) fourthFOURTH, to pay any fees then due to any or all of the Lenders (after giving effect to any letter agreements between Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full,, -41- '
(E) fifthFIFTH, to pay interest due in respect of all Agent Advances Advances, until paid in full,
(F) sixthSIXTH, ratably to pay interest due in respect of the Advances (other than Agent Advances) and the Swing Loans, Loans until paid in full,
(G) seventhSEVENTH, to pay the principal of all Agent Advances until paid in full,
(H) eighthEIGHTH, to pay the principal of all Swing Loans until paid in full,
(I) ninthNINTH, so long as no Event of Default has occurred and is continuing, and at Agent's election (which election Agent agrees will not be made if an Overadvance would be created thereby), to pay amounts then due and owing by Borrower or its Subsidiaries in respect of Bank Products, until paid in full,
(J) TENTH, so long as an Event of Default has not occurred and is not continuing, to pay the principal of all Advances that are Base Rate Loans until paid in full,
(K) ELEVENTH, so long as an Event of Default has not occurred and is not continuing, to pay the principal of all Advances that are LIBOR Rate Loans until paid in full, PROVIDED, HOWEVER that if Borrower provides Agent with prior written notice of Borrower's election not to apply such proceeds to the principal amount of any such LIBOR Rate Loan prior to the last date of the Interest Period with respect to such LIBOR Rate Loan, the amount that would otherwise be applied against such LIBOR Rate Loans pursuant to this subparagraph shall instead be wired to the Collateral Account described by Borrower in such notice, pending its application by Agent pursuant to the provisions of SECTION 2.13(c),
(L) TWELFTH, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(JM) tenthTHIRTEENTH, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full full, and (ii) to Agent, to be held by Agent, for the benefit of the applicable Bank Product Providers, as cash collateral in an amount up to the amount of the Bank Products Reserve established prior to the occurrence of, and not in contemplation of, the subject Event of Default until Borrower's and its Subsidiaries' obligations in respect of the then extant Bank Products have been paid in full or the cash collateral amount has been exhausted,
(N) FOURTEENTH, if an Event of Default has occurred and is continuing, to Agent, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(KO) eleventh, if an Event of Default has occurred and is continuingFIFTEENTH, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral Bank Product Obligations) until paid in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof)full, and
(LP) twelfthSIXTEENTH, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.4(fSECTION 2.3(f).
(iii) In each instance, so long as no Event of Default has occurred and is continuing, this Section 2.5(bSECTION 2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “"paid in full” " means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement of any Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not any of the foregoing same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 SECTION 2.4 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, the terms and provisions of this Section 2.5 SECTION 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application of Payments. (ia) Subject to the provisions of Sections 3.5, 2.9(2)(b), 2.9(2)(c) and 2.10, all payments of principal and interest in respect of Accommodations Outstanding, all payments of Fees and Expenses and all other payments in respect of any other Obligations, shall be allocated among such of the Lenders and the Issue Lender as are entitled thereto, in proportion to their respective Revolving Credit Proportionate Shares, or as otherwise provided herein;
(b) Except as otherwise provided with respect to Defaulting Lenders and except as otherwise provided in Section 2.9(2)(c) and subject to the Loan Documents provisions of Section 2.10, all such payments and any other amounts received by the Agent from or for the benefit of a Borrower shall be applied first, (A) if such payment or amount is in respect of principal or interest on the Accommodations Outstanding, to pay principal of and interest on any portion of the Accommodations to the Borrower which the Agent may have advanced on behalf of any Lender (including letter agreements between Agent Advances) for which the Agent has not then been reimbursed by such Lender or the Borrower or (B) second, to pay the principal of the Accommodations Outstanding (or any installment thereof) advanced to the Borrower which are then due and individual Lenders)payable in the order described hereinbelow and interest on such Accommodations Outstanding then due and payable, aggregate ratably, based on the then outstanding balances of such Accommodations Outstanding, third, to pay all other Obligations then due and payable by the Borrower, ratably, and fourth, as the Borrower so designates. All such principal and interest payments in respect of Accommodations Outstanding shall be apportioned ratably among applied first, to repay outstanding Floating Rate Advances, and then to repay outstanding Eurodollar Rate Advances with those Eurodollar Rate Advances which have earlier expiring Eurodollar Interest Periods being repaid prior to those which have later expiring Eurodollar Interest Periods, and then to repay any other unpaid Accommodations Outstanding then due and payable;
(c) Except as provided in Section 9.5, upon the Lenders (according to termination of the unpaid principal balance Commitment or the acceleration of the Obligations pursuant to which Section 9.2 and until such time, if any, as such termination or acceleration has been rescinded pursuant to Section 9.3, all payments relate held by each Lender) and payments of fees and expenses (other than fees or expenses that are for Agent’s separate account, after giving effect to any letter agreements between Agent and individual Lenders) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Commitment or Obligation to which a particular fee relates. All payments shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, the Agent shall be applied as follows:
(A) in the following order: first, to pay the payment of any Lender Group Fees, Expenses then or other Obligations due and payable to the Agent (in its capacity as such) under any of the Loan Credit Documents, until paid in full,
(B) including Agent Advances and any other amounts advanced by the Agent on behalf of the Lenders; second, to pay the payment of any Fees, expenses or other Obligations due and payable to the Issue Lender Group (in its capacity as such) under any of the Credit Documents; third, to the payment of any Fees, Expenses then or indemnification Obligations due and payable to the Lenders under any of the Loan Credit Documents, ratably, based on a ratable basisthe outstanding balances of such Fees, until paid in full,
(C) third, to pay any fees then due to Agent (for its separate account, after giving effect to any letter agreements between Agent Expenses and individual Lenders) under the Loan Documents until paid in full,
(D) indemnification Obligations; fourth, to pay any fees then the payment of interest due to any or all of on the Lenders (after giving effect to any letter agreements between Agent and individual Accommodations Outstanding, ratably, in accordance with the Lenders) under the Loan Documents, on a ratable basis, until paid in full,
(E) ' respective Revolving Credit Proportionate Share; fifth, to pay interest the payment of principal due on the Accommodations Outstanding, ratably, in respect accordance with the Lenders' respective Revolving Credit Proportionate Shares; sixth, to the payment of all Agent Advances until paid in full,
(F) sixthother Obligations due and payable to the Lenders, ratably to pay interest due in respect ratably, based on the outstanding balances of the Advances (other than Agent Advances) such Obligations; and the Swing Loans, until paid in full,
(G) seventh, to pay the principal payment of all Agent Advances until paid in full,
(H) eighthother Obligations owing to any of the Agent, to pay the principal Issue Lender or any Lender, ratably, based on the outstanding balances of all Swing Loans until paid in full,
(I) ninth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Advances until paid in full,
(J) tenth, if an Event of Default has occurred and is continuing, ratably (i) to pay the principal of all Advances until paid in full such Obligations; and (iid) Subject to AgentSections 2.10 and 3.4, to be held by Agent, for the ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral an amount up to 105% of the then extant Letter of Credit Usage until paid in full,
(K) eleventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Agent, to be held by Agent as cash collateral in an amount up to the amount determined by Agent in its Permitted Discretion as the amount necessary to secure each Credit Party’s obligations in respect of the then extant Obligations under clause (b) of the definition thereof), and
(L) twelfth, to Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(ii) Agent shall promptly shall distribute to each Lender and the Issue Lender at its primary address set forth on the signature page of this Agreement or in the Assignment and Assumption Agreement by which it became a Lender or the Issue Lender, pursuant to the applicable wire instructions received from each Lender or at such other address as such Person may request in writing, such funds as it such Person may be entitled to receive; provided, subject however, that the Agent shall under no circumstances be bound to a Settlement delay as provided in Section 2.4(f).
(iii) In each instanceinquire into or determine the validity, so long as no Event of Default has occurred and is continuing, this Section 2.5(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and payable (scope or prepayable) under any provision of this Agreement.
(iv) For purposes of the foregoing, “paid in full” means payment of all amounts owing under the Loan Documents according to the terms thereof, including loan fees, service fees, professional fees, interest (and specifically including interest accrued after the commencement priority of any Insolvency Proceeding)interest or entitlement of any such Person and may suspend all payments or seek appropriate relief (including, default interestwithout limitation, interest on interest, and expense reimbursements, whether instructions from the Majority Lenders or not any an action in the nature of the foregoing would be or is allowed or disallowed interpleader) in whole or in part in any Insolvency Proceeding.
(v) In the event of a direct conflict between the priority provisions of this Section 2.5 and other provisions contained in any other Loan Document, it is the intention of the parties hereto that such priority provisions in such documents shall be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved doubt or dispute as aforesaid, the terms and provisions of this Section 2.5 shall control and governto any apportionment or distribution contemplated hereby.
Appears in 1 contract
