Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses received by Agent (other than fees or expenses that are for Agent’s separate account or for the separate account of Issuing Bank) shall be apportioned ratably among the Lenders having a Pro Rata Share of the Obligation to which a particular fee or expense relates. (ii) Subject to Section 2.4(b)(iii) and Section 2.4(e), all payments to be made hereunder by any Borrower shall be remitted to Agent, and all such payments, as well as Collections in respect of, and proceeds of, Collateral received by Agent after the occurrence and during the continuation of a Cash Dominion Event, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, as follows: (A) first, to reduce the balance of the outstanding Revolving Loans (and any payments of interest due and payable thereon) of the applicable Borrower and to any other Obligations then due and payable by the applicable Borrower, (B) second, to reduce the balance of the outstanding Revolving Loans (and any payments of interest due and payable thereon) of the other Borrowers and to any other Obligations then due and payable by the other Borrowers, and (C) third, to Borrowers as directed by Administrative Borrower (to be wired to the Designated Account of Administrative Borrower in the case of Xxxxxxx and 100 Maple and the Designated Account of Vector Tobacco in the case of Vector Tobacco) or such other Person entitled thereto under applicable law. (iii) 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 Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the Loan Documents, until paid in full;
Appears in 1 contract
Samples: Credit Agreement (Vector Group LTD)
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except Except as otherwise provided herein with respect to Defaulting Lenders and except as may otherwise be agreed among all Lenders, all aggregate principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of the fees and expenses received by Agent (other than fees or expenses that are designated for Administrative Agent’s sole and separate account or for after giving effect to any agreement with the separate account of Issuing BankLenders) shall shall, as applicable, 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. Except as otherwise provided in clause (iib)(iii) Subject to below or Section 2.4(b)(iii) and Section 2.4(e2.4(c), all payments to be made hereunder by any Borrower shall be remitted to AgentAdministrative Agent and all such payments not relating to principal or interest of specific Advances, or not constituting payment of specific fees, and all such payments, as well as Collections in respect of, and proceeds of, of Accounts or other Collateral received by Agent after the occurrence and during the continuation of a Cash Dominion EventAdministrative Agent, shall be appliedapplied as follows: first, to pay any Lender Group Expenses then due to Administrative Agent or any of the Lenders under the Loan Documents, until paid in full, second, to pay any fees then due to Administrative Agent (for its separate account, after giving effect to any agreements between Administrative Agent and the individual Lenders) under the Loan Documents, until paid in full, third, to pay any fees then due to any or all of the Lenders (after giving effect to any agreements between Administrative Agent and individual Lenders) under the Loan Documents, on a ratable basis, until paid in full; 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 Term Loan B shall, unless the Required Revolver Lenders agree in their sole discretion to forgo deferring such payment, be deferred to item “ninth” below; as applicable; provided, further, 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 the Applicable Premium shall be deferred to items “twelfth” and “thirteenth” below, as applicable, fourth, ratably to pay interest due in respect of the Revolver Advances, until paid in full, fifth, so long as no Application Event of Default has occurred and is continuing and except other than an Event of Default solely arising under Section 8(b) as otherwise provided herein a result of Borrower’s failure to comply with respect to Defaulting LendersSection 6.1 (Financial Reporting) or Section 6.2 (Collateral Reporting), or if an Event of Default has occurred and is continuing (other than an Event of Default solely arising under Section 8(b) as follows: (Aa result of Borrower’s failure to comply with Sections 6.1, or 6.2) firstand to the extent that the Required Revolver Lenders agree, to reduce the balance in their sole discretion, that interest due in respect of the outstanding Revolving Loans (and any payments Term Loan B may be paid pursuant to this item “fifth”, ratably to the payment of interest due in respect of the Term Loan B, until paid in full (provided, if an Event of Default has occurred and is continuing other than an Event of Default solely arising under Section 8(b) as a result of Borrower’s failure to comply with respect to Sections 6.1 and 6.2, or if an Event of Default has occurred and is continuing (other than an Event of Default solely arising under Section 8(b) as a result of Borrower’s failure to comply with Section 6.1, or Section 6.2) and to the extent that the Required Revolver Lenders have not agreed that the interest due in respect of the Term Loan B may be paid pursuant to this item “fifth,” the priority of the payment of such interest on the Term Loan B is deferred to item “tenth” below), sixth, so long as no Event of Default has occurred and is continuing, ratably to pay all principal amounts then due and payable thereon(other than as a result of an acceleration) with respect to the Term Loan B until paid in full, seventh, so long as no Event of the applicable Borrower Default has occurred and is continuing ratably, (i) to any other pay principal of all Revolving Advances and (ii) all Lender Hedging Obligations then due and payable owing by Borrower or its Subsidiaries, eighth, if an Event of Default has occurred and is continuing, ratably (i) to pay the applicable Borrowerprincipal of all Revolving Advances until paid in full, (Bii) secondto Administrative Agent, to reduce be held by Administrative Agent, for the balance ratable benefit of Issuing Lender and those Lenders having a Revolver Commitment, as cash collateral in an amount up to 105% of the outstanding Revolving Loans Letter of Credit Usage until paid in full, and (and any payments of interest due and payable thereoniii) of the other Borrowers and to any other all Lender Hedging Obligations then due and payable owing by Borrower or its Subsidiaries arising under Lender Hedging Agreements but only to the other Borrowersextent such Lender Hedging Agreements were entered into prior to the occurrence of, and (C) thirdnot in contemplation of, the subject Event of Default, ninth, if an Event of Default has occurred and is continuing, to Borrowers as directed pay fees due Term Loan B Lenders in respect of Term Loan B, until paid in full, tenth, if an Event of Default has occurred and is continuing, to pay interest due in respect of the Term Loan B, until paid in full, eleventh, if an Event of Default has occurred and is continuing, to pay the outstanding principal balance of Term Loan B, until Term Loan B is paid in full, twelfth, if an Event of Default has occurred and is continuing, to pay any Applicable Revolving Loan Refinancing Premium then due and payable to Lenders with a Revolver Commitment, thirteenth, if an Event of Default has occurred and is continuing, to pay any Applicable Term Loan B Prepayment Premium then due and payable to Lenders holding a Term Loan B, fourteenth, to pay any other Obligations (including the provision of amounts to Administrative Agent, to be held by Administrative Agent, for the benefit of the Lenders and Lender Related Persons, as cash collateral in an amount up to the amount determined by Administrative Agent in its permitted discretion as the amount necessary to secure Borrower’s and its Subsidiaries’ Lender Hedging Obligations), until paid in full, and fifteenth, to Borrower (to be wired remitted by wire transfer to the Designated Account of Administrative Borrower in the case of Xxxxxxx and 100 Maple and the Designated Account of Vector Tobacco in the case of Vector Tobaccoan account designated by Borrower) or such other Person entitled thereto under applicable law. 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 (iii) At and specifically including interest accrued after the commencement of any time that an Application Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, whether or not the same would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding. 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 2.3(d). In each instance, so long as no Event of Default has occurred and is continuing continuing, Section 2.4(b) shall not be deemed to apply to any payment by Borrower specified by Borrower to be for the payment of specific Obligations then due and except as otherwise provided herein with respect to Defaulting Lenderspayable (or prepayable) under any provision of this Agreement. In the event of a direct conflict between the priority provisions of this Section 2.4 and other provisions contained in any other Loan Document, all payments remitted to Agent and all proceeds it is the intention of Collateral received by Agent the parties hereto that such priority provisions in such documents shall be applied as follows: (A) firstread together and construed, to pay the fullest extent possible, to be in concert with each other. In the event of any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under actual, irreconcilable conflict that cannot be resolved as aforesaid, the Loan Documents, until paid in full;terms and provisions of this Section 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses received by Agent (other than fees or expenses that are for Agent’s separate account or for the separate account of the Issuing BankLender) 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 or expense relates. (ii) Subject to Section 2.4(b)(iii) and Section 2.4(e), all All payments to be made hereunder by any Borrower Borrowers shall be remitted to AgentAgent and all (subject to Section 2.4(b)(iii), Section 2.4(d)(ii), and Section 2.4(e)) such payments, and all such payments, as well as Collections in respect of, and proceeds of, of Collateral received by Agent after the occurrence and during the continuation of a Cash Dominion EventAgent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, as follows: (A) firstcontinuing, to reduce the balance of the Advances outstanding Revolving Loans (and any payments of interest due and payable thereon) of the applicable Borrower and to any other Obligations then due and payable by the applicable Borrowerand, (B) second, to reduce the balance of the outstanding Revolving Loans (and any payments of interest due and payable thereon) of the other Borrowers and to any other Obligations then due and payable by the other Borrowers, and (C) thirdthereafter, to Borrowers as directed by Administrative Borrower (to be wired to the applicable Designated Account of Administrative Borrower in the case of Xxxxxxx and 100 Maple and the Designated Account of Vector Tobacco in the case of Vector TobaccoAccount) or such other Person entitled thereto under applicable law. (iii) At any time that an Application Event has occurred and is continuing continuing, subject to the delivery of any notices required pursuant to Section 9.1 and except as otherwise provided herein with respect to Defaulting Lenders, all payments remitted to Agent by the Loan Parties and all proceeds of Collateral received by Agent shall be applied as follows: (A) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent from the Loan Parties under the Loan Documents, until paid in full;, second, to pay any fees or premiums then due to Agent from the Loan Parties under the Loan Documents until paid in full, third, to pay interest due in respect of all Protective Advances related to the Collateral or the Loan Parties until paid in full, fourth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Revolver Lenders from the Loan Parties under the Loan Documents, until paid in full, fifth, ratably, to pay any fees or premiums then due to any of the Revolver Lenders from the Loan Parties under the Loan Documents until paid in full, sixth, to pay interest accrued in respect of the Swingline Loans until paid in full, seventh, to pay the principal of all Swingline Loans until paid in full; eighth, ratably, to pay interest accrued in respect of the Revolver Advances (other than Protective Advances), ninth, ratably (1) to pay the principal of all Revolver Advances until paid in full, (2) to Agent, to Cash Collateralize any Letters of Credit (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any such 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 2.4(b)(ii), beginning with tier (A) hereof), and (3) ratably, to the Bank Product Providers based upon amounts certified to Agent to be due and payable to such Bank Product Provider on account of Noticed Bank Product Obligations in an amount up to the Bank Product Reserve Amount with respect thereto, tenth, to pay any other Revolver Obligations (other than Bank Product Obligations that are not Noticed Bank Product Obligations) owing to any Revolver Lender other than any such Revolver Obligations owed to Defaulting Lenders, eleventh, ratably to pay any Revolver Obligations (other than Bank Product Obligations that are not Noticed Bank Product Obligations) owed to Defaulting Lenders, twelfth, ratably, to pay (i) any Required Term Lenders’ Advisors’ Expenses and (ii) any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Term Lenders from the Loan Parties under the Loan Documents, until paid in full, thirteenth, ratably, to pay any fees or premiums then due to any of the Term Lenders from the Loan Parties under the Loan Documents until paid in full, fourteenth, ratably, to pay interest accrued in respect of the Term Advances, fifteenth, ratably, to pay the principal of all Term Advances until paid in full, sixteenth, ratably to pay any other Term Obligations; seventeenth, ratably, to the Bank Product Providers on account of any Bank Product Obligations that are not Noticed Bank Product Obligations, and eighteenth, to Borrowers (to be wired to the applicable Designated Account) or such other Person entitled thereto under applicable law; Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject (in the case of Revolver Lenders) to a Settlement delay as provided in Section 2.3(e). In each instance, so long as no Application Event has occurred and is continuing, Section 2.4(b)(i) shall not apply to any payment made by any Borrower to Agent and specified by such Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or any other Loan Document. Notwithstanding anything to the contrary set forth in any of the Loan Documents, (i) payments and collections received in any currency other than the currency in which any outstanding Obligations are denominated will be accepted and/or applied at the discretion of Agent, in the event that Agent elects to accept and apply such amounts when there are no Obligations (other than Letters of Credit or other contingent Obligations) then outstanding in the same currency, Agent may, at its option (but is not obligated to), convert such currency received to the currency in which the Obligations are denominated at the Spot Rate on such date (regardless of whether such rate is the best available rate) and in such event, Borrowers shall pay the costs of such conversion (or Agent may, at its option, charge such costs to the loan account of any Borrower maintained by Agent) and (ii) to the extent any Borrower or Guarantor, directly or indirectly, uses any proceeds of the applicable Advances or Letters of Credit to acquire rights in or the use of any Collateral or to repay any Indebtedness used to acquire rights in or the use of any Collateral, payments in respect of the Obligations shall be deemed applied first to the Obligations arising from Advances and Letters of Credit that were not used for such purposes and second to the Obligations arising from Advances and Letters of Credit the proceeds of which were used to acquire rights in or the use of any Collateral in the chronological order in which such Borrower acquired such rights in or the use of such Collateral. For purposes of this Section 2.4(b), “paid in full” of a type of Obligation means payment in cash or immediately available funds of all amounts owing on account of such type of Obligation, including interest accrued after the commencement of any Insolvency Proceeding, default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding. In the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, if the conflict relates to the provisions of Section 2.3(g) and this Section 2.4, then the provisions of Section 2.3(g) shall control and govern, and if otherwise, then the terms and provisions of this Section 2.4 shall control and govern. Exhibit 10.61 DIP Credit Agreement Reduction of Commitments. The Revolver Commitments shall terminate on the Maturity Date. Borrowers may reduce the Revolver Commitments to an amount not less than the greater of (i) $100,000,000 and (ii) the sum of (A) the Revolver Usage as of such date, plus (B) the principal amount of all Advances not yet made as to which a request has been given by Borrowers under Section 2.3(a), plus (C) the amount of all Letters of Credit not yet issued as to which a request has been given by Borrowers pursuant to Section 2.11(a); provided that the Borrowers may reduce the Revolver Commitment to $0 in connection with the payment in full of all Obligations and the termination of the Revolver Commitment in accordance with the terms hereof. Each such reduction shall be in an amount which is not less than $1,000,000, shall be made by providing not less than 3 Business Days prior written notice to Agent and shall be irrevocable. Once reduced, the Revolver Commitments may not be increased. Each such reduction of the Revolver Commitments shall reduce the Revolver Commitments of each Lender proportionately in accordance with its Pro Rata Share thereof. The Initial Term Commitments shall terminate on the Closing Date immediately following the funding of the Initial Term Advances to be made on the Closing Date. The Delayed Draw Term Commitments shall terminate on the Final Term Funding Date immediately following the funding of the Delayed Draw Term Advances to be made on the Final Term Funding Date.
Appears in 1 contract
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenderscontinuing, all principal and interest payments received made by Agent the Borrower shall be apportioned paid ratably among to 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 received made by Agent the Borrower (other than fees or expenses that are for Agent’s separate account or for the separate account of Issuing Bankaccount, which fees and expenses shall be paid to Agent) shall be apportioned paid ratably among the Lenders having a to each Lender according to such Lender’s Pro Rata Share of the type of commitment or Obligation to which a particular fee or expense relates. (ii) Subject to Section 2.4(b)(iii) and Section 2.4(eany applicable regulatory requirements (including any licensing requirements promulgated by applicable Governmental Authorities or Regulatory Authorities), all payments to be made hereunder by any Borrower shall be remitted to Agent, and all such payments, as well as Collections in respect of, and proceeds of, of Collateral received by Agent after the occurrence and during the continuation of a Cash Dominion EventAgent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, as follows: (A) first, to reduce be distributed to the balance of the outstanding Revolving Loans (and any payments of interest due and payable thereon) of the applicable Borrower and to any other Obligations then due and payable by the applicable Borrower, (B) second, to reduce the balance of the outstanding Revolving Loans (and any payments of interest due and payable thereon) of the other Borrowers and to any other Obligations then due and payable by the other Borrowers, and (C) third, to Borrowers as directed by Administrative Borrower (to be wired to the Designated Account of Administrative Borrower in the case of Xxxxxxx and 100 Maple and the Designated Account of Vector Tobacco in the case of Vector TobaccoAccount) or such other Person entitled thereto under applicable lawApplicable Law. If any Lender shall receive any amounts with respect to the Obligations at any time that an Application Event has occurred and is continuing, such Lender shall receive such amounts as trustee for Agent, and such Lender shall deliver any such amounts to Agent for application to the Obligations in accordance with Section 2.3(b)(ii). (iiiii) 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 or any Lender and all proceeds of Collateral received by Agent shall be applied as follows: (A) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the Loan Documents, in each case until paid in full;, (B) second, to the extent not paid under clause (A) above, ratably, to pay any fees or premiums then due to Agent and the Lenders under the Loan Documents until paid in full, (C) third, to pay interest accrued with respect to the Protective Advances, ratably, until paid in full, (D) fourth, to pay the outstanding principal balance of the Protective Advances until such amounts are paid in full, (E) fifth, ratably to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents until paid in full, (F) sixth, to the extent not paid under clause (B) above, ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents until paid in full,
Appears in 1 contract
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenderscontinuing, all principal and interest payments received made by Agent the Borrower shall be apportioned paid ratably among to 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 received made by Agent the Borrower (other than fees or expenses that are for Agent’s separate account or for the separate account of Issuing Bankaccount, which fees and expenses shall be paid to Agent) shall be apportioned paid ratably among the Lenders having a to each Lender according to such Lender’s Pro Rata Share of the type of commitment or Obligation to which a particular fee or expense relates. (ii) Subject to Section 2.4(b)(iii) and Section 2.4(eany applicable regulatory requirements (including any licensing requirements promulgated by applicable Governmental Authorities or Regulatory Authorities), all payments to be made hereunder by any Borrower shall be remitted to Agent, and all such payments, as well as Collections in respect of, and proceeds of, of Collateral received by Agent after the occurrence and during the continuation of a Cash Dominion EventAgent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, as follows: (A) first, to reduce be distributed to the balance of the outstanding Revolving Loans (and any payments of interest due and payable thereon) of the applicable Borrower and to any other Obligations then due and payable by the applicable Borrower, (B) second, to reduce the balance of the outstanding Revolving Loans (and any payments of interest due and payable thereon) of the other Borrowers and to any other Obligations then due and payable by the other Borrowers, and (C) third, to Borrowers as directed by Administrative Borrower (to be wired to the Designated Account of Administrative Borrower in the case of Xxxxxxx and 100 Maple and the Designated Account of Vector Tobacco in the case of Vector TobaccoAccount) or such other Person entitled thereto under applicable lawApplicable Law. If any Lender shall receive any amounts with respect to the Obligations at any time that an Application Event has occurred and is continuing, such Lender shall receive such amounts as trustee for Agent, and such Lender shall deliver any such amounts to Agent for application to the Obligations in accordance with Section 2.3(b)(ii). (iiiii) 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 or any Lender and all proceeds of Collateral received by Agent shall be applied as follows: (A) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the Loan Documents, in each case until paid in full;, (B) second, to the extent not paid under clause (A) above, ratably, to pay any fees or premiums then due to Agent and the Lenders under the Loan Documents until paid in full, (C) third, to pay interest accrued with respect to the Protective Advances, ratably, until paid in full, (D) fourth, to pay the outstanding principal balance of the Protective Advances until such amounts are paid in full, (E) fifth, ratably to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents until paid in full,
Appears in 1 contract
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all principal and interest payments received by Agent shall be apportioned ratably among the applicable 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 received by Agent (other than fees or expenses that are for Agent’s separate account or for the separate account of Issuing BankLender) 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. (ii) Subject to Section 2.4(b)(iii2.4(b)(iv) and Section 2.4(e)2.17, all payments in respect of US Obligations to be made hereunder by any Borrower Borrowers shall be remitted to Agent, Agent and all such payments, as well as Collections in respect of, and all proceeds of, of Collateral securing US Obligations received by Agent after the occurrence and during the continuation of a Cash Dominion EventAgent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting US Lenders, as follows: (A) first, first to reduce the balance of the outstanding US Revolving Loans (and any payments of interest due and payable thereon) of the applicable Borrower and to any other Obligations then due and payable by the applicable Borroweroutstanding, (B) second, second to reduce the balance of the outstanding Revolving Loans (and any payments of interest due and payable thereon) of the other Borrowers and to any other Obligations then due and payable by the other BorrowersTerm Loan and, and (C) thirdthereafter, to Borrowers as directed by Administrative US Borrower (to be wired to the US Designated Account of Administrative Borrower in the case of Xxxxxxx and 100 Maple and the Designated Account of Vector Tobacco in the case of Vector TobaccoAccount) or such other Person entitled thereto under applicable law. Subject to Section 2.4(b)(iv) and Section 2.17, all payments in respect of UK-Dutch Obligations to be made hereunder by Borrowers shall be remitted to Agent and all such payments, and all proceeds of Collateral securing UK-Dutch Obligations (iiiexcluding Collateral of the US Loan Parties) At any time that an received by Agent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting LendersUK-Dutch Lenders to reduce the balance of the UK-Dutch Revolving Loans outstanding and, thereafter, to UK-Dutch Borrowers (to be wired to the Dutch Designated Account (or the UK Designated Account if requested in writing by the UK-Dutch Administrative Borrower)) or such other Person entitled thereto under applicable law; provided that notwithstanding the foregoing, proceeds in Sterling shall be used to repay outstanding Sterling Revolving Loans prior to application to outstanding Euro Revolving Loans and proceeds in Euro shall be used to repay outstanding Euro Revolving Loans prior to application to outstanding Sterling Revolving Loans. Subject to Section 2.4(b)(iv) and Section 2.17, all payments in respect of German Obligations to be made hereunder by Borrowers shall be remitted to Agent and all such payments, and all proceeds of Collateral securing German Obligations (excluding Collateral of the US Loan Parties) received by Agent Agent, shall be applied applied, so long as follows: (A) firstno Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting German Lenders, to pay any Lender Group Expenses reduce the balance of the German Revolving Loans of the applicable German Borrower to which such payments or proceeds relate to outstanding and, thereafter, to the applicable German Borrower (including cost or expense reimbursementsto be wired to the German Designated Account of such Borrower) or indemnities then due to Agent such other Person entitled thereto under the Loan Documents, until paid in full;applicable law.
Appears in 1 contract
Samples: Credit Agreement (Ciber Inc)
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenderscontinuing, all principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses received by Agent (other than fees or expenses that are for Agent’s separate account or for the separate account of Issuing Bank) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Obligation to which a particular fee or expense relates. (ii) Subject to Section 2.4(b)(iii) and Section 2.4(e), all All payments to be made hereunder by any Borrower shall be remitted to AgentAgent and all (subject to Section 2.4(b)(iv)) such payments, and all such payments, as well as Collections in respect of, and proceeds of, of Collateral received by Agent after the occurrence and during the continuation of a Cash Dominion EventAgent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, as follows: (A) firstcontinuing, to reduce the balance of the Loans outstanding Revolving Loans (and any payments of interest due and payable thereon) of the applicable Borrower and to any other Obligations then due and payable by the applicable Borrowerand, (B) secondthereafter, to reduce the balance of the outstanding Revolving Loans (and any payments of interest due and payable thereon) of the other Borrowers and to any other Obligations then due and payable by the other Borrowers, and (C) third, to Borrowers as directed by Administrative Borrower (to be wired to the Designated Account of Administrative Borrower in the case of Xxxxxxx and 100 Maple and the Designated Account of Vector Tobacco in the case of Vector Tobacco) or such other Person entitled thereto under applicable law. (iii) At any time that an Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenderscontinuing, all payments remitted to Agent and all proceeds of Collateral received by Agent shall be applied as follows: (A) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Agent under the Loan Documents, until paid in full;, second, to pay any fees or premiums (if any) then due to Agent under the Loan Documents until paid in full, third, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents, until paid in full, fourth, ratably, to pay any fees or premiums (including any Prepayment Premium) then due to any of the Lenders under the Loan Documents until paid in full, fifth, ratably, to pay interest accrued in respect of the Loans until paid in full, sixth, ratably to pay the principal of all Loans until paid in full, seventh, to pay any other Obligations, and eighth, to Borrower or such other Person entitled thereto under applicable law. Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive. In each instance, so long as no Application Event has occurred and is continuing, Section 2.4(b)(i) shall not apply to any payment made by Borrower to Agent and specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or any other Loan Document. For purposes of Section 2.4(b)(ii), “paid in full” of a type of Obligation means payment in cash or immediately available funds of all amounts owing on account of such type of Obligation, including interest accrued after the commencement of any Insolvency Proceeding (or which would have accrued but for the commencement of such Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding. In the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, then the terms and provisions of this Section 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (ia) Each borrowing by the Borrower from the Lenders hereunder, each payment by the Borrower on account of any commitment fee and any reduction of the Commitments of the Lenders shall be made pro rata according to the respective Pro Rata Shares of the relevant Lenders, with respect to the relevant Facility. So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all : (i) each payment (including each prepayment) by the Borrower on account of principal of and interest payments received by Agent on the Term Loans shall be apportioned ratably among the Lenders (made pro rata according to the unpaid respective outstanding principal balance amounts of the Obligations to which such payments relate Term Loans then held by each Lender) and all payments of fees and expenses received by Agent (other than fees or expenses that are for Agent’s separate account or for the separate account of Issuing Bank) shall be apportioned ratably among the Lenders having a Pro Rata Share of the Obligation to which a particular fee or expense relates. Term Lenders, (ii) Subject to Section 2.4(b)(iii) and Section 2.4(e), all payments to be made hereunder by any Borrower the amount of each principal prepayment of the Term Loans shall be remitted applied to Agentreduce the then remaining installments of the Term Loans, and all such paymentspro rata based upon the then remaining principal amount thereof; provided, as well as Collections in respect of, and proceeds of, Collateral received by Agent after the occurrence and during the continuation that if no Event of a Cash Dominion Event, shall be applied, so long as no Application Event Default has occurred and is continuing continuing, any prepayments made to the Term Loans pursuant to Section 4.1 may be applied, at the Borrower’s option, to the next succeeding installment or installments of the Term Loans due within twelve months after such prepayment is made, (iii) each payment (including each prepayment) by the Borrower on account of principal of and except as otherwise provided herein with respect interest on the Incremental Term Loans shall be made pro rata according to Defaulting the respective outstanding principal amounts of the Incremental Term Loans then held by the Incremental Term Lenders, as follows: and (Aiv) first, the amount of each principal prepayment of the Incremental Term Loans shall be applied to reduce the balance then remaining installments of the outstanding Revolving Loans (and any payments Incremental Term Loans, pro rata based upon the then remaining principal amount thereof; provided, that if no Event of interest due and payable thereon) of the applicable Borrower and to any other Obligations then due and payable by the applicable Borrower, (B) second, to reduce the balance of the outstanding Revolving Loans (and any payments of interest due and payable thereon) of the other Borrowers and to any other Obligations then due and payable by the other Borrowers, and (C) third, to Borrowers as directed by Administrative Borrower (to be wired to the Designated Account of Administrative Borrower in the case of Xxxxxxx and 100 Maple and the Designated Account of Vector Tobacco in the case of Vector Tobacco) or such other Person entitled thereto under applicable law. (iii) At any time that an Application Event Default has occurred and is continuing and except as otherwise provided herein with respect continuing, any prepayments made to Defaulting Lendersthe Incremental Term Loans pursuant to Section 4.1 may be applied, all payments remitted to Agent and all proceeds of Collateral received by Agent shall be applied as follows: (A) firstat the Borrower’s option, to pay any Lender Group Expenses (including cost the next succeeding installment or expense reimbursements) or indemnities then installments of the Incremental Term Loans due to Agent under the Loan Documents, until paid in full;within twelve months after such prepayment is made.
Appears in 1 contract
Samples: Credit Agreement (Einstein Noah Restaurant Group Inc)
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenderscontinuing, all principal and interest payments received by Agent shall be apportioned ratably among the Lenders (according to the unpaid principal balance of the Obligations to which such payments relate held by each Lender) and all payments of fees and expenses received by Agent (other than fees or expenses that are for Agent’s separate account or for the separate account of Issuing Bank) shall be apportioned ratably among the Lenders having a Pro Rata Share of the type of Obligation to which a particular fee or expense relates. (ii) Subject to Section 2.4(b)(iii) and Section 2.4(e), all All payments to be made hereunder by any Borrower shall be remitted to AgentAgent and all (subject to Section 2.4(b)(iv)) such payments, and all such payments, as well as Collections in respect of, and proceeds of, of Collateral received by Agent after the occurrence and during the continuation of a Cash Dominion EventAgent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, as follows: (A) firstcontinuing, to reduce the balance of the Loans outstanding Revolving Loans (and any payments of interest due and payable thereon) of the applicable Borrower and to any other Obligations then due and payable by the applicable Borrowerand, (B) secondthereafter, to reduce the balance of the outstanding Revolving Loans (and any payments of interest due and payable thereon) of the other Borrowers and to any other Obligations then due and payable by the other Borrowers, and (C) third, to Borrowers as directed by Administrative Borrower (to be wired to the Designated Account of Administrative Borrower in the case of Xxxxxxx and 100 Maple and the Designated Account of Vector Tobacco in the case of Vector Tobacco) or such other Person entitled thereto under applicable law. (iii) At any time that an Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenderscontinuing, all payments remitted to Agent and all proceeds of Collateral received by Agent shall be applied as follows: (A) 234 1021245.081077953.04A-CHISR02A - MSW first, 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;, second, to pay any fees or premiums then due to Agent under the Loan Documents until paid in full, third, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Lenders under the Loan Documents, until paid in full, fourth, ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents until paid in full, fifth, ratably, to pay interest accrued in respect of the Loans until paid in full, sixth, ratably to pay the principal of all Loans until paid in full, seventh, to pay any other Obligations, and eighth, to Borrower or such other Person entitled thereto under applicable law. Agent promptly shall distribute to each Lender, pursuant to the applicable wire instructions received from each Lender in writing, such funds as it may be entitled to receive, subject to a Settlement delay as provided in Section 2.3(e). In each instance, so long as no Application Event has occurred and is continuing, Section 2.4(b)(i) shall not apply to any payment made by Borrower to Agent and specified by Borrower to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or any other Loan Document. For purposes of Section 2.4(b)(ii), “paid in full” of a type of Obligation means payment in cash or immediately available funds of all 235 1021245.081077953.04A-CHISR02A - MSW amounts owing on account of such type of Obligation, including interest accrued after the commencement of any Insolvency Proceeding (or which would have accrued but for the commencement of such Insolvency Proceeding), default interest, interest on interest, and expense reimbursements, irrespective of whether any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding. In the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision contained in this Agreement or any other Loan Document, it is the intention of the parties hereto that such provisions be read together and construed, to the fullest extent possible, to be in concert with each other. In the event of any actual, irreconcilable conflict that cannot be resolved as aforesaid, if the conflict relates to the provisions of Section 2.3(g) and this Section 2.4, then the provisions of Section 2.3(g) shall control and govern, and if otherwise, then the terms and provisions of this Section 2.4 shall control and govern.
Appears in 1 contract
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all principal and interest payments received by Agent shall be apportioned ratably among the applicable 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 received by Agent (other than fees or expenses that are for Agent’s separate account or for the separate account of Issuing Bank) 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. (ii) Subject to Section 2.4(b)(iii) and 2.4(b)(iv), Section 2.4(d)(ii), Section 2.4(e), and Section 2.17, all payments in respect of US Obligations to be made hereunder by any Borrower Borrowers shall be remitted to Agent, Agent and all such payments, as well as Collections in respect of, and all proceeds of, of Collateral securing US Obligations received by Agent after the occurrence and during the continuation of a Cash Dominion EventAgent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting US Lenders, as follows: (A) first, first to reduce the balance of the outstanding US Revolving Loans (and any payments of interest due and payable thereon) of the applicable Borrower and to any other Obligations then due and payable by the applicable Borroweroutstanding and, (B) secondthereafter, to reduce the balance of the outstanding Revolving Loans (and any payments of interest due and payable thereon) of the other Borrowers and to any other Obligations then due and payable by the other Borrowers, and (C) third, to Borrowers as directed by Administrative US Borrower (to be wired to the US Designated Account of Administrative Borrower in the case of Xxxxxxx and 100 Maple and the Designated Account of Vector Tobacco in the case of Vector TobaccoAccount) or such other Person entitled thereto under applicable law. Subject to Section 2.4(b)(iv) and Section 2.17, all payments in respect of UK Obligations to be made hereunder by Borrowers shall be remitted to Agent and all such payments, and all proceeds of Collateral securing UK Obligations (iiiexcluding Collateral of the US Loan Parties) At any time that an received by Agent, shall be applied, so long as no Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting LendersUK Lenders to reduce the balance of the UK Revolving Loans outstanding and, all payments remitted thereafter, to Agent and all UK Borrowers (to be wired to the UK Designated Account) or such other Person entitled thereto under applicable law; provided, that notwithstanding the foregoing, proceeds of Collateral received by Agent in Dollars shall be applied as follows: (A) firstused to repay outstanding UK Obligations denominated in Dollars prior to application to outstanding UK Obligations denominated in Sterling or Euros, proceeds in Sterling shall be used to pay any Lender Group Expenses (including cost repay outstanding UK Obligations denominated in Sterling prior to application to outstanding UK Obligations denominated in Dollars or expense reimbursements) Euros and proceeds in Euros shall be used to repay outstanding UK Obligations denominated in Euros prior to application to outstanding UK Obligations denominated in Dollars or indemnities then due to Agent under the Loan Documents, until paid in full;Sterling.
Appears in 1 contract
