Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein, 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) entitled to such payments 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 Lender) 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 Borrowers shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Advances outstanding and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law (subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e)). (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 in respect of the Obligations (other than Canadian Obligations) and all proceeds of Collateral (other than Canadian 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, (B) second, to pay any fees then due to Agent under the Loan Documents until paid in full, (C) third, to pay interest due in respect of all Protective Advances until paid in full, (D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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, ratably, to pay any fees then due to any of the Lenders under the Loan Documents until paid in full, (G) seventh, to pay interest accrued in respect of the Swing Loans until paid in full, (H) eighth, to pay the principal of all Swing Loans until paid in full, (I) ninth, ratably, to pay interest accrued in respect of the Advances (other than Protective Advances and Canadian Advances) until paid in full, (J) tenth, ratably (i) to Agent, for the account of Agent and Lenders, to pay the principal of all Advances (other than Canadian Advances) until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the US Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations, (K) eleventh, to pay any other Obligations other than Obligations owed to Defaulting Lenders or Bank Product Obligations, (L) twelfth, 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 the 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)(ii), beginning with clause (A) hereof), (M) thirteenth, ratably to pay any Obligations owed to Defaulting Lenders; and (N) fourteenth, to Borrowers (to be wired to the Designated Account) 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 in respect of the Canadian Obligations and all proceeds of Canadian 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, (B) second, to pay any fees then due to Agent under the Loan Documents until paid in full, (C) third, to pay interest due in respect of all Protective Advances made for the account of Canadian Borrowers until paid in full, (D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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 Canadian Lenders under the Loan Documents, until paid in full, (F) sixth, ratably, to pay any fees then due to any of the Canadian Lenders under the Loan Documents until paid in full, (G) seventh, ratably, to pay interest accrued in respect of the Canadian Advances (other than Protective Advances) until paid in full, (H) eighth, ratably (i) to Agent, for the account of Agent and Canadian Lenders, to pay the principal of all Canadian Advances until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations, (I) ninth, to pay any other Canadian 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 the 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)(iii), beginning with clause (A) hereof), (J) tenth, ratably to pay any Canadian Obligations owed to Defaulting Lenders, and (K) eleventh, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law. (iv) 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). (v) 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. (vi) For purposes of Section 2.4(b)(ii) or (iii), “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, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding. (vii) 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. (viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.
Appears in 2 contracts
Samples: Credit Agreement (Colt Finance Corp.), Credit Agreement (Colt Defense LLC)
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided hereinSubject to Section 2.4(b)(ii), 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) entitled to such payments 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 Lender) 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 Borrowers shall be remitted to Agent Lender and all such payments, and all proceeds of Collateral received by AgentLender, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Advances outstanding and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law (subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e)).
(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 in respect of the Obligations (other than Canadian Obligations) and all proceeds of Collateral (other than Canadian 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 Lender under the Loan Documents, until paid in full,
(B) second, to pay any fees then due to Agent Lender under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances until paid in full,
(D) fourth, so long as no Event of Default has occurred and is continuing, and at Lender’s election (which election Lender 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 Protective Advances made for the account of Canadian Borrowers Bank Products, until paid in full,
(E) fifth, ratablyso long as no Event of Default has occurred and is continuing, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any the principal of the Lenders under the Loan Documents, all Advances until paid in full,
(F) sixth, ratably, to pay any fees then due to any if an Event of the Lenders under the Loan Documents until paid in full,
(G) seventh, to pay interest accrued in respect of the Swing Loans until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, ratably, to pay interest accrued in respect of the Advances (other than Protective Advances Default has occurred and Canadian Advances) until paid in full,
(J) tenthis continuing, ratably (i) to Agent, for the account of Agent and Lenders, to pay the principal of all Advances (other than Canadian Advances) until paid in full, (ii) to AgentLender, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the US Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by Agent until paid in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii), beginning with clause (A) hereof)full, and (iii) ratably, to the 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 Bank Product Obligations of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(K) eleventh, to pay any other Obligations other than Obligations owed to Defaulting Lenders or Bank Product Obligations,
(L) twelfth, 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 AgentLender, to be held by AgentLender, for the ratable benefit of the Bank Product Providers, as cash collateral (which cash collateral may be released by Agent in an amount up to the applicable amount of the Bank Product Provider and applied by such Bank Product Provider Reserve established prior to the payment occurrence of, and not in contemplation of, the subject Event of Default until Borrower’s and its Subsidiaries’ obligations in respect of Bank Products have been paid in full 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 amount has been exhausted,
(G) seventh, to pay any other Obligations (including the provision of amounts to Lender, to be held by Agent Lender, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Lender in its Permitted Discretion as the amount necessary to secure Borrower’s and its Subsidiaries’ obligations in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iiProducts), beginning with clause (A) hereof),
(M) thirteenth, ratably to pay any Obligations owed to Defaulting Lenders; and
(NH) fourteentheighth, to Borrowers Borrower (to be wired to the Designated Account) 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 in respect of the Canadian Obligations and all proceeds of Canadian 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,
(B) second, to pay any fees then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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 Canadian Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, to pay any fees then due to any of the Canadian Lenders under the Loan Documents until paid in full,
(G) seventh, ratably, to pay interest accrued in respect of the Canadian Advances (other than Protective Advances) until paid in full,
(H) eighth, ratably (i) to Agent, for the account of Agent and Canadian Lenders, to pay the principal of all Canadian Advances until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(I) ninth, to pay any other Canadian 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 the 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)(iii), beginning with clause (A) hereof),
(J) tenth, ratably to pay any Canadian Obligations owed to Defaulting Lenders, and
(K) eleventh, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iv) 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).
(v) In each instance, so long as no Application Event of Default has occurred and is continuing, this Section 2.4(b)(i2.4(b) shall not apply to any payment made by any Borrower to Agent Lender 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 DocumentAgreement.
(viiii) For purposes of Section 2.4(b)(ii) or (iii)the foregoing, “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 Obligationunder 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.
(viiiv) In the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision 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 2.3(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.
(viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.
Appears in 2 contracts
Samples: Loan and Security Agreement (Overstock Com Inc), Loan and Security Agreement (OVERSTOCK.COM, Inc)
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided hereinwith 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) entitled to such payments 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 Lenderaccount) 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. All payments to be made hereunder by Borrowers shall be remitted to Agent and all (subject to Section 2.4 (b)(iv), Section 2.4(d)(ii), and Section 2.4(e)) such payments, and all proceeds of Collateral received by Agent, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Advances outstanding and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law (subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e))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 in respect of the Obligations (other than Canadian Obligations) and all proceeds of Collateral (other than Canadian 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,
(B) second, to pay any fees then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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, ratably, to pay any fees then due to any of the Lenders under the Loan Documents until paid in full,
(G) seventh, to pay interest accrued in respect of the Swing Loans until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, ratably, to pay interest accrued in respect of the Advances (other than Protective Advances and Canadian Advances) until paid in full,
(J) tenth, ratably (i) to Agent, for the account of Agent and Lenders, to pay the principal of all Advances (other than Canadian Advances) until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the US Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(K) eleventh, to pay any other Obligations other than Obligations owed to Defaulting Lenders or Bank Product Obligations,
(L) twelfth, 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 the 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)(ii), beginning with clause (A) hereof),
(M) thirteenth, ratably to pay any Obligations owed to Defaulting Lenders; and
(N) fourteenth, to Borrowers (to be wired to the Designated Account) 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 in respect of the Canadian Obligations and all proceeds of Canadian 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,
(B) second, to pay any fees or premiums then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(E) fifth, ratably, ratably to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Canadian Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, ratably to pay any fees or premiums then due to any of the Canadian Lenders under the Loan Documents until paid in full,
(G) seventh, ratably, ratably to pay interest accrued due in respect of the Canadian Advances (other than Protective Advances) and the Swing Loans until paid in full,
(H) eighth, ratably (i) to Agentpay the principal of all Swing Loans until paid in full, for the account of Agent and Canadian Lenders, (ii) to pay the principal of all Canadian Advances until paid in full, (iiiii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such which cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, shall be reapplied pursuant to this Section 2.4(b)(iii2.4(b)(ii), beginning with clause tier (A) hereof), and (iiiiv) ratably, to the 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 Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(I) ninth, to pay any other Canadian 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 the Bank Product Providers, as cash collateral in an amount up to the amount the Bank Product Providers reasonably determine to be the credit exposure of Parent and its Subsidiaries in respect of Bank Product Obligations (which cash collateral may shall be released by Agent to the applicable Bank Product Provider and applied by such Bank Product Provider applied, ratably, to the payment or reimbursement of any amounts due and payable with respect to such 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 any such Bank Product Obligations are Obligation is paid or otherwise satisfied in full, the cash collateral held by Agent in respect of such Bank Product Obligations Obligation shall be reapplied pursuant to this Section 2.4(b)(iii2.4(b)(ii), beginning with clause tier (A) hereof),
, (JI) tenthninth, ratably to pay any Canadian Obligations owed to Defaulting Lendersother Obligations, and
(K) eleventh, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iv) 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).
(v) 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.
(vi) For purposes of Section 2.4(b)(ii) or (iii), “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, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(vii) 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.
(viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.
Appears in 2 contracts
Samples: Credit Agreement (Finisar Corp), Credit Agreement (Finisar Corp)
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided hereinherein 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) entitled to such payments 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 LenderBank) 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 Subject to Section 2.4(b)(iv), all payments to be made hereunder by Borrowers shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied, so long as no Application Event has occurred and is continuingcontinuing and except as otherwise provided herein with respect to Defaulting Lenders, to reduce the balance of the Advances Revolving Loans outstanding and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law (subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e))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 in respect of the Obligations (other than Canadian Obligations) and all proceeds of Collateral (other than Canadian Collateral) received by Agent shall shall, subject to the terms of the Intercreditor Agreement, be applied as follows:
(A) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities (including any indemnities for Taxes pursuant to Section 16) then due to Agent under the Loan DocumentsDocuments and to pay interest and principal on Extraordinary Advances that are held solely by Agent pursuant to the terms of Section 2.4(d)(iv), until paid in full,
(B) second, to pay any fees or premiums then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(E) fifth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities (including any indemnities for Taxes pursuant to Section 16) then due to any of the Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents until paid in full,
(G) seventh, to pay interest accrued in respect of the Swing Loans until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, ratably, to pay interest accrued in respect of the Revolving Loans (including Extraordinary Advances (other than Protective Advances and Canadian Advances) until paid in full,
(J) tenth, ratably ratably, (i) to Agent, for the account of Agent and Lendersratably, to pay the principal of all Revolving Loans (including Extraordinary Advances (other than Canadian Protective Advances) until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender Bank (and for the ratable benefit of each of the US Lenders that have an obligation to pay to Agent, for the account of the Issuing LenderBank, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii), beginning with clause tier (A) hereof), and (iii) ratably, up to the amount (after taking into account any amounts previously paid pursuant to this clause iii. during the continuation of the applicable Application Event) of the most recently established Bank Product Reserve to (y) the Bank Product Providers that are existing Lenders or Affiliates of existing Lenders 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 of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(K) eleventh, to pay any other Obligations other than Obligations owed to Defaulting Lenders or Bank Product Obligations,
(L) twelfth, 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, and (z) with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of the Bank Product ProvidersProviders that are existing Lenders or Affiliates of existing Lenders, 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)(ii), beginning with clause tier (A) hereof),
(MK) thirteenth, ratably to pay any Obligations owed to Defaulting Lenders; and
(N) fourteenth, to Borrowers (to be wired to the Designated Account) 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 in respect of the Canadian Obligations and all proceeds of Canadian 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,
(B) second, to pay any fees then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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 Canadian Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, to pay any fees then due to any of the Canadian Lenders under the Loan Documents until paid in full,
(G) seventh, ratably, to pay interest accrued in respect of the Canadian Advances (other than Protective Advances) until paid in full,
(H) eighth, ratably (i) to Agent, for the account of Agent and Canadian Lenders, to pay the principal of all Canadian Advances until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(I) nintheleventh, to pay any other Canadian 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 the 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)(iii), beginning with clause (A) hereofcollateral),
(JL) tenthtwelfth, ratably to pay any Canadian Obligations owed to Defaulting Lenders, and
(KM) elevenththirteenth, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iviii) 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).
(viv) 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 Borrowers to Agent and specified by such Borrower Borrowers 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.
(viv) For purposes of Section 2.4(b)(ii) or (iii), “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, indemnities, 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.
(viivi) 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.
(viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.
Appears in 1 contract
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided hereinherein 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) entitled to such payments 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 LenderBank) 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 Subject to Section 2.4(b)(iv), all payments to be made hereunder by Borrowers shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied, so long as no Application Event has occurred and is continuingcontinuing and except as otherwise provided herein with respect to Defaulting Lenders, to reduce the balance of the Advances Revolving Loans outstanding and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law (subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e))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 in respect of the Obligations (other than Canadian Obligations) and all proceeds of Collateral (other than Canadian Collateral) received by Agent shall be applied as follows:
(A) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities (including any indemnities for Taxes pursuant to Section 16) then due to Agent under the Loan DocumentsDocuments and to pay interest and principal on Extraordinary Advances that are held solely by Agent pursuant to the terms of Section 2.4(d)(iv), until paid in full,
(B) second, to pay any fees or premiums then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(E) fifth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities (including any indemnities for Taxes pursuant to Section 16) then due to any of the Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents until paid in full,
(G) seventh, to pay interest accrued in respect of the Swing Loans until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, ratably, to pay interest accrued in respect of the Revolving Loans (including Extraordinary Advances (other than Protective Advances and Canadian Advances) until paid in full,
(J) tenth, ratably ratably, (i) to Agent, for the account of Agent and Lendersratably, to pay the principal of all Revolving Loans (including Extraordinary Advances (other than Canadian Protective Advances) until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender Bank (and for the ratable benefit of each of the US Lenders that have an obligation to pay to Agent, for the account of the Issuing LenderBank, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii), beginning with clause tier (A) hereof), and (iii) ratably, up to the amount (after taking into account any amounts previously paid pursuant to this clause (iii) during the continuation of the applicable Application Event) of the most recently established Bank Product Reserve to (y) the Bank Product Providers that are existing Lenders or Affiliates of existing Lenders 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 of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(K) eleventh, to pay any other Obligations other than Obligations owed to Defaulting Lenders or Bank Product Obligations,
(L) twelfth, 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, and (z) with any balance to be paid to Agent, to be held by Agent, for the ratable benefit of the Bank Product ProvidersProviders that are existing Lenders or Affiliates of existing Lenders, 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)(ii), beginning with clause tier (A) hereof),
(MK) thirteenth, ratably to pay any Obligations owed to Defaulting Lenders; and
(N) fourteenth, to Borrowers (to be wired to the Designated Account) 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 in respect of the Canadian Obligations and all proceeds of Canadian 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,
(B) second, to pay any fees then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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 Canadian Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, to pay any fees then due to any of the Canadian Lenders under the Loan Documents until paid in full,
(G) seventh, ratably, to pay interest accrued in respect of the Canadian Advances (other than Protective Advances) until paid in full,
(H) eighth, ratably (i) to Agent, for the account of Agent and Canadian Lenders, to pay the principal of all Canadian Advances until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(I) nintheleventh, to pay any other Canadian 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 the 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)(iii), beginning with clause (A) hereofcollateral),
(JL) tenthtwelfth, ratably to pay any Canadian Obligations owed to Defaulting Lenders, and
(KM) elevenththirteenth, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iviii) 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).
(viv) 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 Borrowers to Agent and specified by such Borrower Borrowers 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.
(viv) For purposes of Section 2.4(b)(ii) or (iii), “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, indemnities, 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.
(viivi) 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.
(viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.
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, 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) entitled to such payments 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 Lender) 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 Borrowers shall be remitted to Agent Lender and all such payments, and all proceeds of Collateral received by AgentLender, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Advances outstanding and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law (subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e)).
(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 in respect of the Obligations (other than Canadian Obligations) and all proceeds of Collateral (other than Canadian 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 Lender under the Loan Documents, until paid in full,
(B) second, to pay any fees then due to Agent Lender under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances until paid in full,
(D) fourth, so long as no Event of Default has occurred and is continuing, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(E) fifth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any if an Event of the Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, to pay any fees then due to any of the Lenders under the Loan Documents until paid in full,
(G) seventh, to pay interest accrued in respect of the Swing Loans until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, ratably, to pay interest accrued in respect of the Advances (other than Protective Advances Default has occurred and Canadian Advances) until paid in full,
(J) tenthis continuing, ratably (i) to Agent, for the account of Agent and Lenders, to pay the principal of all Advances (other than Canadian Advances) until paid in full, full and (ii) to AgentLender, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the US Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by Agent until paid in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligationsfull,
(KF) eleventhsixth, to pay any other Obligations other than Obligations owed to Defaulting Lenders or Bank Product Obligations,
(L) twelfth, 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 the 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)(ii), beginning with clause (A) hereof),
(M) thirteenth, ratably to pay any Obligations owed to Defaulting Lenders; and
(NG) fourteenthseventh, to Borrowers Borrower (to be wired to the Designated Account) 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 in respect of the Canadian Obligations and all proceeds of Canadian 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,
(B) second, to pay any fees then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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 Canadian Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, to pay any fees then due to any of the Canadian Lenders under the Loan Documents until paid in full,
(G) seventh, ratably, to pay interest accrued in respect of the Canadian Advances (other than Protective Advances) until paid in full,
(H) eighth, ratably (i) to Agent, for the account of Agent and Canadian Lenders, to pay the principal of all Canadian Advances until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(I) ninth, to pay any other Canadian 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 the 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)(iii), beginning with clause (A) hereof),
(J) tenth, ratably to pay any Canadian Obligations owed to Defaulting Lenders, and
(K) eleventh, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iv) 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).
(v) In each instance, so long as no Application Event of Default has occurred and is continuing, this Section 2.4(b)(i2.4(b) shall not apply to any payment made by any Borrower to Agent Lender 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 DocumentAgreement.
(viiii) For purposes of Section 2.4(b)(ii) or (iii)the foregoing, “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 Obligationunder 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.
(viiiv) In the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision 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 2.3(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.
(viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.
Appears in 1 contract
Samples: Loan and Security Agreement (Lazy Days R.V. Center, Inc.)
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided hereinherein 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) entitled to such payments 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 LenderBank) 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 Subject to Section 2.4(b)(v) and Section 2.4(e), all payments to be made hereunder by Borrowers shall be remitted to Agent and all such payments, and all proceeds of Collateral received by Agent, shall be applied, so long as no Application Event has occurred and is continuingcontinuing and except as otherwise provided herein with respect to Defaulting Lenders, to reduce the balance of the Advances Revolving Loans outstanding and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law (subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e)).
(ii) law. 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 in respect of the Obligations (other than Canadian Obligations) and all proceeds of Collateral (other than Canadian 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,
(B) , second, to pay any fees or premiums then due to Agent under the Loan Documents until paid in full,
(C) , third, to pay interest due in respect of all Protective Advances until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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, ratably, to pay any fees then due to any of the Lenders under the Loan Documents until paid in full,
(G) seventh, to pay interest accrued in respect of the Swing Loans until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, ratably, to pay interest accrued in respect of the Advances (other than Protective Advances and Canadian Advances) until paid in full,
(J) tenth, ratably (i) to Agent, for the account of Agent and Lenders, to pay the principal of all Advances (other than Canadian Advances) until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the US Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(K) eleventh, to pay any other Obligations other than Obligations owed to Defaulting Lenders or Bank Product Obligations,
(L) twelfth, 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 the 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)(ii), beginning with clause (A) hereof),
(M) thirteenth, ratably to pay any Obligations owed to Defaulting Lenders; and
(N) fourteenth, to Borrowers (to be wired to the Designated Account) 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 in respect of the Canadian Obligations and all proceeds of Canadian 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,
(B) second, to pay any fees then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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 Canadian Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, to pay any fees then due to any of the Canadian Lenders under the Loan Documents until paid in full,
(G) seventh, ratably, to pay interest accrued in respect of the Canadian Advances (other than Protective Advances) until paid in full,
(H) eighth, ratably (i) to Agent, for the account of Agent and Canadian Lenders, to pay the principal of all Canadian Advances until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(I) ninth, to pay any other Canadian 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 the 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)(iii), beginning with clause (A) hereof),
(J) tenth, ratably to pay any Canadian Obligations owed to Defaulting Lenders, and
(K) eleventh, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iv) 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).
(v) 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.
(vi) For purposes of Section 2.4(b)(ii) or (iii), “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, whether or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(vii) 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.
(viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.DM3\7893162.1DM3\7893162.7
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, 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) entitled to such payments 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 Lender) 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 Borrowers shall be remitted to Agent Lender and all such payments, and all proceeds of Collateral received by AgentLender, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Advances outstanding and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law (subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e)).
(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 in respect of the Obligations (other than Canadian Obligations) and all proceeds of Collateral (other than Canadian 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 Lender under the Loan Documents, until paid in full,
(B) second, to pay any fees or premiums then due to Agent Lender under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances until paid in full,
(D) fourth, so long as no Event of Default has occurred and is continuing, and at Lender's election, to pay the principal amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of all Protective Advances made for the account of Canadian Borrowers Bank Products, until paid in full,
(E) fifth, ratablyso long as no Event of Default has occurred and is continuing, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any the principal of the Lenders under the Loan Documents, all Advances until paid in full,
(F) sixth, ratably, to pay any fees then due to any if an Event of the Lenders under the Loan Documents until paid in full,
(G) seventh, to pay interest accrued in respect of the Swing Loans until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, ratably, to pay interest accrued in respect of the Advances (other than Protective Advances Default has occurred and Canadian Advances) until paid in full,
(J) tenthis continuing, ratably (i) to Agent, for the account of Agent and Lenders, to pay the principal of all Advances (other than Canadian Advances) until paid in full, (ii) to AgentLender, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the US Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by Agent until paid in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii), beginning with clause (A) hereof)full, and (iii) ratably, to the 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 Bank Product Obligations of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(K) eleventh, to pay any other Obligations other than Obligations owed to Defaulting Lenders or Bank Product Obligations,
(L) twelfth, 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 AgentLender, to be held by AgentLender, for the ratable benefit of the Bank Product Providers, as cash collateral (which cash collateral may be released by Agent in an amount up to the applicable amount of the Bank Product Provider and applied by such Bank Product Provider Reserve established prior to the payment occurrence of, and not in contemplation of, the subject Event of Default until Borrowers' and their Subsidiaries' obligations in respect of Bank Products have been paid in full 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 amount has been exhausted,
(G) seventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Lender, to be held by Agent Lender, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Lender in its Permitted Discretion as the amount necessary to secure Borrowers' and its Subsidiaries' obligations in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iiProducts), beginning with clause (A) hereof),
(M) thirteenth, ratably to pay any Obligations owed to Defaulting Lenders; and
(NH) fourteentheighth, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iii) At ; provided, however, that any time that an Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all payments such amount remitted to Agent Borrowers from a Lender Deposit Account shall be limited to the amount of collected funds in respect such account (after payment of the Canadian Obligations and all proceeds of Canadian Collateral received by Agent shall be applied as follows:
amounts described in items (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,
(B) second, to pay any fees then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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 Canadian Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, to pay any fees then due to any of the Canadian Lenders under the Loan Documents until paid in full,
through (G) seventh, ratably, to pay interest accrued above) in respect excess of the Canadian Advances $10,000 (other than Protective Advances) until paid which $10,000 amount shall be held in full,
(H) eighth, ratably such account as cash collateral (i) to Agentpay any amounts due to the applicable depository bank from time to time in respect of such account or any lockbox services provided by such depository bank in connection with such account which are not otherwise paid by Borrowers directly, for through a debit against the account of Agent and Canadian Lenders, to pay the principal of all Canadian Advances until paid in full, Designated Account or otherwise or (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(I) ninth, to pay any other Canadian 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 the Bank Product Providers, as cash collateral (which cash collateral that may be released by Agent due from time 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)(iii), beginning with clause (A) hereof),
(J) tenth, ratably to pay any Canadian Obligations owed to Defaulting Lenders, and
(K) eleventh, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iv) 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(etime).
(vii) In each instance, so long as no Application Event of Default has occurred and is continuing, this Section 2.4(b)(i2.4(b) shall not apply to any payment made by any Borrower Borrowers to Agent Lender and specified by such Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or any other Loan DocumentAgreement.
(viiii) For purposes of Section 2.4(b)(ii) or (iii)the foregoing, “"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 Obligationunder 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.
(viiiv) In the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision 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 2.3(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.
(viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.
Appears in 1 contract
Samples: Credit Agreement (Cryolife Inc)
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided herein, 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) entitled to such payments 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 Lender) 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 Borrowers shall be remitted to Agent Lender and all such payments, and all proceeds of Collateral received by AgentLender, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Advances outstanding and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law (subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e)).
(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 in respect of the Obligations (other than Canadian Obligations) and all proceeds of Collateral (other than Canadian 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 Lender under the Loan Documents, until paid in full,
(B) second, to pay any fees or premiums then due to Agent Lender under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances until paid in full,
(D) fourth, so long as no Event of Default has occurred and is continuing, and at Lender’s election, to pay the principal amounts then due and owing by Administrative Borrower or its Subsidiaries in respect of all Protective Advances made for the account of Canadian Borrowers Bank Products, until paid in full,
(E) fifth, ratablyso long as no Event of Default has occurred and is continuing, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any the principal of the Lenders under the Loan Documents, all Advances until paid in full,
(F) sixth, ratably, to pay any fees then due to any if an Event of the Lenders under the Loan Documents until paid in full,
(G) seventh, to pay interest accrued in respect of the Swing Loans until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, ratably, to pay interest accrued in respect of the Advances (other than Protective Advances Default has occurred and Canadian Advances) until paid in full,
(J) tenthis continuing, ratably (i) to Agent, for the account of Agent and Lenders, to pay the principal of all Advances (other than Canadian Advances) until paid in full, (ii) to AgentLender, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the US Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by Agent until paid in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii), beginning with clause (A) hereof)full, and (iii) ratably, to the 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 Bank Product Obligations of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(K) eleventh, to pay any other Obligations other than Obligations owed to Defaulting Lenders or Bank Product Obligations,
(L) twelfth, 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 AgentLender, to be held by AgentLender, for the ratable benefit of the Bank Product Providers, as cash collateral (which cash collateral may be released by Agent in an amount up to the applicable amount of the Bank Product Provider and applied by such Bank Product Provider Reserve established prior to the payment occurrence of, and not in contemplation of, the subject Event of Default until Borrowers’ and their Subsidiaries’ obligations in respect of Bank Products have been paid in full 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 amount has been exhausted,
(G) seventh, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Lender, to be held by Agent Lender, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Lender in its Permitted Discretion as the amount necessary to secure Borrowers’ and its Subsidiaries’ obligations in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iiProducts), beginning with clause (A) hereof),
(M) thirteenth, ratably to pay any Obligations owed to Defaulting Lenders; and
(NH) fourteentheighth, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iii) At ; provided, however, that any time that an Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all payments such amount remitted to Agent Borrowers from a Lender Deposit Account shall be limited to the amount of collected funds in respect such account (after payment of the Canadian Obligations and all proceeds of Canadian Collateral received by Agent shall be applied as follows:
amounts described in items (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,
(B) second, to pay any fees then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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 Canadian Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, to pay any fees then due to any of the Canadian Lenders under the Loan Documents until paid in full,
through (G) seventh, ratably, to pay interest accrued above) in respect excess of the Canadian Advances $10,000 (other than Protective Advances) until paid which $10,000 amount shall be held in full,
(H) eighth, ratably such account as cash collateral (i) to Agentpay any amounts due to the applicable depository bank from time to time in respect of such account or any lockbox services provided by such depository bank in connection with such account which are not otherwise paid by Borrowers directly, for through a debit against the account of Agent and Canadian Lenders, to pay the principal of all Canadian Advances until paid in full, Designated Account or otherwise or (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(I) ninth, to pay any other Canadian 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 the Bank Product Providers, as cash collateral (which cash collateral that may be released by Agent due from time 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)(iii), beginning with clause (A) hereof),
(J) tenth, ratably to pay any Canadian Obligations owed to Defaulting Lenders, and
(K) eleventh, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iv) 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(etime).
(vii) In each instance, so long as no Application Event of Default has occurred and is continuing, this Section 2.4(b)(i2.4(b) shall not apply to any payment made by any Borrower Borrowers to Agent Lender and specified by such Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or any other Loan DocumentAgreement.
(viiii) For purposes of Section 2.4(b)(ii) or (iii)the foregoing, “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 Obligationunder 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.
(viiiv) In the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision 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 2.3(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.
(viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.
Appears in 1 contract
Samples: Credit Agreement (Cryolife Inc)
Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided hereinherein with respect to Defaulting Lenders, all principal and interest payments received by an 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) entitled to such payments and all payments of fees and expenses received by an Agent (other than fees or expenses that are for such Agent’s separate account or for the separate account of the an Issuing Lender) 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. All payments to be made hereunder by Borrowers US Borrower shall be remitted to US Agent and all (subject to Section 2.4(b)(iv) and Section 2.4(e)) such payments, and all proceeds of Collateral received by US Agent, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the US Advances outstanding and, thereafter, to Borrowers US Borrower (to be wired to the US Designated Account) or such other Person entitled thereto under applicable law law. All payments to be made hereunder by a Canadian Borrower shall be remitted to Canadian Agent and all (subject to Section 2.4(b)(v), Section 2.4(d)(ii), 2.4(b)(iv) and Section 2.4(e))) such payments, and all proceeds of Collateral received by Canadian Agent, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Canadian Advances outstanding and, thereafter, to such Canadian Borrower (to be wired to the Canadian 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 :
(A) All payments remitted to Agent in respect of the US Obligations (other than Canadian Obligations) remitted to US Agent and all proceeds of Collateral (other than Canadian Collateral) securing US Obligations received by US Agent shall be applied as follows:
(A1) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to US Agent under the Loan Documents, until paid in full,
(B2) second, to pay any fees or premiums then due to US Agent under the Loan Documents until paid in full,
(C3) third, to pay interest due in respect of all US Protective Advances until paid in full,
(D4) fourth, to pay the principal of all US Protective Advances made for the account of Canadian Borrowers until paid in full,
(E5) 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, Documents in respect of US Obligations until paid in full,
(F6) sixth, ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents with respect to the US Obligations until paid in full,
(G7) seventh, to pay interest accrued in respect of the US Swing Loans until paid in full,
(H) 8) eighth, to pay the principal of all US Swing Loans until paid in full,
(I9) ninth, ratably, to pay interest accrued in respect of the US Advances (other than US Protective Advances and Canadian Advances) until paid in full,
(J10) tenth, ratably (i) to Agent, for the account of Agent and Lenders, to pay the principal of all US Advances (other than Canadian Advances) until paid in full, (ii) to US Agent, to be held by US Agent, for the benefit of US Issuing Lender (and for the ratable benefit of each of the US Lenders that have an obligation to pay to US Agent, for the account of the US Issuing Lender, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105103% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by US Agent in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii2.4(b)(ii)(A), beginning with clause tier (A1) hereof), and (iii) ratably, to the US Bank Product Providers based upon amounts then certified by the applicable US Bank Product Provider to Agent (in form and substance satisfactory to US Agent) to be due and payable to such US Bank Product Providers on account of Bank Product Obligations of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(K11) eleventh, to pay any other US Obligations other than US Obligations owed to Defaulting Lenders or Bank Product ObligationsLenders,
(L12) twelfth, to pay Canadian Agent for application to any other remaining Canadian 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 until paid to Agent, to be held by Agent, for the ratable benefit of the 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)(ii), beginning with clause (A) hereof),
(M13) thirteenth, ratably to pay any US Obligations owed to Defaulting Lenders; , and
(N14) fourteenth, to Borrowers the US Borrower (to be wired to the US Designated Account) or such other Person entitled thereto under applicable law.
(iiiB) At any time that an Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all All payments remitted to Agent in respect of the Canadian Obligations remitted to Canadian Agent and all proceeds of Collateral securing Canadian Collateral Obligations received by Canadian Agent shall be applied as follows:
(A1) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Canadian Agent with respect to Canadian Obligations under the Loan Documents, until paid in full,
(B2) second, to pay any fees or premiums then due to Canadian Agent under the Loan Documents until paid in full,
(C3) third, to pay interest due in respect of all Canadian Protective Advances made for the account of Canadian Borrowers until paid in full,
(D4) fourth, to pay the principal of all Canadian Protective Advances made for the account of Canadian Borrowers until paid in full,
(E5) fifth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Canadian Lenders under the Loan DocumentsDocuments in respect of Canadian Obligations, until paid in full,
(F6) sixth, ratably, to pay any fees or premiums then due to any of the Lenders in respect of Canadian Lenders Obligations under the Loan Documents until paid in full,
(G7) seventh, to pay interest accrued in respect of the Canadian Swing Loans until paid in full,
(8) eighth, to pay the principal of all Canadian Swing Loans until paid in full,
(9) ninth, ratably, to pay interest accrued in respect of the Canadian Advances (other than Canadian Protective Advances) until paid in full,
(H10) eighthtenth, ratably (i) to Agent, for the account of Agent and Canadian Lenders, to pay the principal of all Canadian Advances until paid in full, (ii) to Canadian Agent, to be held by Canadian Agent, for the benefit of Canadian Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Canadian Agent, for the account of the Canadian Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105103% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Canadian Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii2.4(b)(ii)(B), beginning with clause tier (A1) hereof), and (iii) ratably, to the Canadian Bank Product Providers based upon amounts then certified by the applicable Canadian Bank Product Provider to Canadian Agent (in form and substance satisfactory to Canadian Agent) to be due and payable to such Canadian Bank Product Providers on account of Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(I11) nintheleventh, to pay any other Canadian Obligations other than Canadian 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 the 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)(iii), beginning with clause (A) hereof)Lenders,
(J12) tenthtwelfth, ratably to pay any Canadian Obligations owed to Defaulting Lenders, and
(K13) elevenththirteenth, to Canadian Borrowers (to be wired to the Canadian Designated Account) or such other Person entitled thereto under applicable law.
(iviii) The applicable 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 receivereceive from such Agent, subject to a Settlement delay as provided in Section 2.3(e).
(viv) 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 an 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.
(viv) For purposes of Section 2.4(b)(ii) or (iii), “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 or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(viivi) 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.
(viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.
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, 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) entitled to such payments 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 Lender) 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 Borrowers shall be remitted to Agent Lender and all such payments, payments and all proceeds of Collateral received by AgentLender, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Advances outstanding and, thereafter, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law (subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e)).
(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 in respect of the Obligations (other than Canadian Obligations) and all proceeds of Collateral (other than Canadian 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 Lender under the Loan Documents, until paid in full,
(B) second, to pay any fees or premiums then due to Agent Lender under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances and the Term Loan until paid in full,
(D) fourth, 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 Protective Advances made for the account of Canadian Borrowers Term Loan until paid in full,
(E) fifth, ratablyso long as no Event of Default has occurred and is continuing, and at Lender's election, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities amounts then due to any and owing by Administrative Borrower or its Subsidiaries in respect of the Lenders under the Loan DocumentsBank Products, until paid in full,
(F) sixth, ratablyso long as no Event of Default has occurred and is continuing, to pay any fees then due to any the principal of the Lenders under the Loan Documents all Advances until paid in full,
(G) seventh, to pay interest accrued in respect if an Event of the Swing Loans until paid in full,
(H) eighth, to pay the principal of all Swing Loans until paid in full,
(I) ninth, ratably, to pay interest accrued in respect of the Advances (other than Protective Advances Default has occurred and Canadian Advances) until paid in full,
(J) tenthis continuing, ratably (i) to Agent, for the account of Agent and Lenders, to pay the principal of all Advances (other than Canadian Advances) until paid in full, (ii) to AgentLender, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the US Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by Agent until paid in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii), beginning with clause (A) hereof)full, and (iii) ratably, to the 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 Bank Product Obligations of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(K) eleventh, to pay any other Obligations other than Obligations owed to Defaulting Lenders or Bank Product Obligations,
(L) twelfth, 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 AgentLender, to be held by AgentLender, for the ratable benefit of the Bank Product Providers, as cash collateral (which cash collateral may be released by Agent in an amount up to the applicable amount of the Bank Product Provider and applied by such Bank Product Provider Reserve established prior to the payment occurrence of, and not in contemplation of, the subject Event of Default until Borrowers' and their Subsidiaries' obligations in respect of Bank Products have been paid in full 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 amount has been exhausted,
(H) eighth, 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,
(I) ninth, if an Event of Default has occurred and is continuing, to pay any other Obligations (including the provision of amounts to Lender, to be held by Agent Lender, for the benefit of the Bank Product Providers, as cash collateral in an amount up to the amount determined by Lender in its Permitted Discretion as the amount necessary to secure Borrowers' and their Subsidiaries' obligations in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iiProducts), beginning with clause (A) hereof)and,
(MJ) thirteenth, ratably to pay any Obligations owed to Defaulting Lenders; and
(N) fourteenthtenth, to Borrowers (to be wired to the Designated Account) 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 in respect of the Canadian Obligations and all proceeds of Canadian 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,
(B) second, to pay any fees then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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 Canadian Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, to pay any fees then due to any of the Canadian Lenders under the Loan Documents until paid in full,
(G) seventh, ratably, to pay interest accrued in respect of the Canadian Advances (other than Protective Advances) until paid in full,
(H) eighth, ratably (i) to Agent, for the account of Agent and Canadian Lenders, to pay the principal of all Canadian Advances until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(I) ninth, to pay any other Canadian 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 the 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)(iii), beginning with clause (A) hereof),
(J) tenth, ratably to pay any Canadian Obligations owed to Defaulting Lenders, and
(K) eleventh, to Borrowers (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iv) 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).
(v) In each instance, so long as no Application Event of Default has occurred and is continuing, this Section 2.4(b)(i2.4(b) shall not apply to any payment made by any Borrower Borrowers to Agent Lender and specified by such Borrower Borrowers to be for the payment of specific Obligations then due and payable (or prepayable) under any provision of this Agreement or any other Loan DocumentAgreement.
(viiii) For purposes of Section 2.4(b)(ii) or (iii)the foregoing, “"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 Obligationunder 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.
(viiiv) In the event of a direct conflict between the priority provisions of this Section 2.4 and any other provision 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 2.3(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.
(viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.
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Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided hereinherein with respect to Defaulting Lenders, all principal and interest payments received by Administrative 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) entitled to such payments and all payments of fees and expenses received by Administrative Agent (other than fees or expenses that are for Administrative Agent’s separate account or for the separate account of the Issuing Lender) 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 Subject to subsection 2.4C(iv), subsection 2.4A(i)(b), subsection 2.4A(iii)(b), subsection 2.4A(iii)(c)(2), subsection 2.4A(iv)(a)(2), and subsection 2.4A(iv)(d)(2), all payments to be made hereunder by Borrowers Borrower shall be remitted to Administrative Agent and all such payments, and all proceeds of Collateral received by Administrative Agent, shall be applied, so long as no Application Event has occurred and is continuingcontinuing and except as otherwise provided herein with respect to Defaulting Lenders, to reduce the balance of the Advances Revolving Loans outstanding and, thereafter, to Borrowers Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law (subject to Section 2.4(b)(v), Section 2.4(d)(ii), and Section 2.4(e))law.
(ii) At Notwithstanding anything to the contrary in subsection 2.4A, 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 Administrative Agent in respect of the Obligations (other than Canadian Obligations) and all proceeds of Collateral (other than Canadian Collateral) received by Administrative Agent shall be applied as follows:
(Aa) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Administrative Agent under the Loan Documents, until paid in full,
(Bb) second, to pay any fees or premiums then due to Administrative Agent under the Loan Documents until paid in full,
(Cc) third, to pay interest due in respect of all Protective Advances until paid in full,
(Dd) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(Ee) 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,
(Ff) sixth, ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents until paid in full,
(Gg) seventh, to pay interest accrued in respect of the Swing Line Loans until paid in full,
(Hh) eighth, to pay the principal of all Swing Line Loans until paid in full,
(Ii) ninth, ratably, to pay interest accrued in respect of the Advances Revolving Loans (other than Protective Advances and Canadian Advances) and the Term Loan until paid in full,
(Jj) tenth, ratably ratably
(i1) to Agent, for the account of Agent and Lendersratably, to pay the principal of all Advances (other than Canadian Advances) Revolving Loans and the Term Loan until paid in full, ,
(ii2) to Administrative Agent, to be held by Administrative Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the US Lenders that have an obligation to pay to Administrative Agent, for the account of the Issuing Lender, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by Administrative Agent in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iisubsection 2.4C(ii), beginning with clause tier (Aa) hereof), and ,
(iii3) ratably, up to the amount (after taking into account any amounts previously paid pursuant to this clause (C) during the continuation of the applicable Application Event) of the most recently established Bank Product Reserve in the aggregate (after taking into account any amounts previously paid pursuant to this clause (3) during the continuation of the applicable Application Event), to (I) the Bank Product Providers based upon amounts then certified by the applicable Bank Product Provider to Administrative Agent (in form and substance satisfactory to Administrative Agent) to be due and payable to such Bank Product Providers on account of Bank Product Obligations of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(K) eleventh, to pay any other Obligations other than Obligations owed to Defaulting Lenders or Bank Product Obligations,
(L) twelfth, 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, and (II) with any balance to be paid to Administrative Agent, to be held by Administrative Agent, for the ratable benefit of the Bank Product Providers, as cash collateral (which cash collateral may be released by Administrative 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 Administrative Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iisubsection 2.4C(ii), beginning with clause tier (Aa) hereof),
(Mk) thirteenth, ratably to pay any Obligations owed to Defaulting Lenders; and
(N) fourteenth, to Borrowers (to be wired to the Designated Account) 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 in respect of the Canadian Obligations and all proceeds of Canadian 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,
(B) second, to pay any fees then due to Agent under the Loan Documents until paid in full,
(C) third, to pay interest due in respect of all Protective Advances made for the account of Canadian Borrowers until paid in full,
(D) fourth, to pay the principal of all Protective Advances made for the account of Canadian Borrowers until 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 Canadian Lenders under the Loan Documents, until paid in full,
(F) sixth, ratably, to pay any fees then due to any of the Canadian Lenders under the Loan Documents until paid in full,
(G) seventh, ratably, to pay interest accrued in respect of the Canadian Advances (other than Protective Advances) until paid in full,
(H) eighth, ratably (i) to Agent, for the account of Agent and Canadian Lenders, to pay the principal of all Canadian Advances until paid in full, (ii) to Agent, to be held by Agent, for the benefit of Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Agent, for the account of the Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii), beginning with clause (A) hereof), and (iii) ratably, to the 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 Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(I) nintheleventh, to pay any other Canadian 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 Administrative Agent, to be held by Administrative Agent, for the ratable benefit of the Bank Product Providers, as cash collateral (which cash collateral may be released by Administrative 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 Administrative Agent in respect of such Bank Product Obligations shall be reapplied pursuant to this Section 2.4(b)(iiisubsection 2.4C(ii), beginning with clause tier (Aa) hereof),
(Jl) tenthtwelfth, ratably to pay any Canadian Obligations owed to Defaulting Lenders, ; and
(Km) elevenththirteenth, to Borrowers Borrower (to be wired to the Designated Account) or such other Person entitled thereto under applicable law.
(iviii) 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(e).
(viv) In each instance, so long as no Application Event has occurred and is continuing, Section 2.4(b)(isubsection 2.4C(i) shall not apply to any payment made by any Borrower to Administrative 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.
(viv) For purposes of Section 2.4(b)(ii) or (iiisubsection 2.4C(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, 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.
(viivi) 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) 2.9 and this Section 2.4, then the provisions of Section 2.3(g) 2.9 shall control and govern, and if otherwise, then the terms and provisions of this Section 2.4 subsection 2.4C shall control and govern.
(viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.
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Apportionment and Application. (i) So long as no Application Event has occurred and is continuing and except as otherwise provided hereinherein with respect to Defaulting Lenders, all principal and interest payments received by an 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) entitled to such payments and all payments of fees and expenses received by an Agent (other than fees or expenses that are for such Agent’s separate account or for the separate account of the an Issuing Lender) 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. All payments to be made hereunder by Borrowers US Borrower shall be remitted to US Agent and all (subject to Section 2.4(b)(iv) and Section 2.4(e)) such payments, and all proceeds of Collateral received by US Agent, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the US Advances outstanding and, thereafter, to Borrowers US Borrower (to be wired to the US Designated Account) or such other Person entitled thereto under applicable law law. All payments to be made hereunder by a Canadian Borrower shall be remitted to Canadian Agent and all (subject to Section 2.4(b)(v), Section 2.4(d)(ii), 2.4(b)(iv) and Section 2.4(e))) such payments, and all proceeds of Collateral received by Canadian Agent, shall be applied, so long as no Application Event has occurred and is continuing, to reduce the balance of the Canadian Advances outstanding and, thereafter, to such Canadian Borrower (to be wired to the Canadian Designated Account) or such other Person entitled thereto under applicable law.
(ii) At any time that an Application Event has occurred and is continuing continuing, subject to the terms of the Intercreditor Agreement, and except as otherwise provided herein with respect to Defaulting Lenders, all :
(A) All payments remitted to Agent in respect of the US Obligations (other than Canadian Obligations) remitted to US Agent and all proceeds of Collateral (other than Canadian Collateral) securing US Obligations received by US Agent shall be applied as follows:
(A1) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to US Agent under the Loan Documents, until paid in full,
(B2) second, to pay any fees or premiums then due to US Agent under the Loan Documents until paid in full,
(C3) third, to pay interest due in respect of all US Protective Advances until paid in full,
(D4) fourth, to pay the principal of all US Protective Advances made for the account of Canadian Borrowers until paid in full,
(E5) 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, Documents in respect of US Obligations until paid in full,
(F6) sixth, ratably, to pay any fees or premiums then due to any of the Lenders under the Loan Documents with respect to the US Obligations until paid in full,
(G7) seventh, to pay interest accrued in respect of the US Swing Loans until paid in full,
(H) 8) eighth, to pay the principal of all US Swing Loans until paid in full,
(I9) ninth, ratably, to pay interest accrued in respect of the US Advances (other than US Protective Advances and Canadian Advances) until paid in full,
(J10) tenth, ratably (i) to Agent, for the account of Agent and Lenders, to pay the principal of all US Advances (other than Canadian Advances) until paid in full, (ii) to US Agent, to be held by US Agent, for the benefit of US Issuing Lender (and for the ratable benefit of each of the US Lenders that have an obligation to pay to US Agent, for the account of the US Issuing Lender, a share of each US Letter of Credit Disbursement), as cash collateral in an amount up to 105103% of the US Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any US Letter of Credit Disbursement as and when such disbursement occurs and, if a US Letter of Credit expires undrawn, the cash collateral held by US Agent in respect of such US Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(ii2.4(b)(ii)(A), beginning with clause tier (A1) hereof), and (iii) ratably, to the US Bank Product Providers based upon amounts then certified by the applicable US Bank Product Provider to Agent (in form and substance satisfactory to US Agent) to be due and payable to such US Bank Product Providers on account of Bank Product Obligations of US Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(K11) eleventh, to pay any other US Obligations other than US Obligations owed to Defaulting Lenders or Bank Product ObligationsLenders,
(L12) twelfth, to pay Canadian Agent for application to any other remaining Canadian 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 until paid to Agent, to be held by Agent, for the ratable benefit of the 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)(ii), beginning with clause (A) hereof),
(M13) thirteenth, ratably to pay any US Obligations owed to Defaulting Lenders; , and
(N14) fourteenth, to Borrowers the US Borrower (to be wired to the US Designated Account) or such other Person entitled thereto under applicable law.
(iiiB) At any time that an Application Event has occurred and is continuing and except as otherwise provided herein with respect to Defaulting Lenders, all All payments remitted to Agent in respect of the Canadian Obligations remitted to Canadian Agent and all proceeds of Collateral securing Canadian Collateral Obligations received by Canadian Agent shall be applied as follows:
(A1) first, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to Canadian Agent with respect to Canadian Obligations under the Loan Documents, until paid in full,
(B2) second, to pay any fees or premiums then due to Canadian Agent under the Loan Documents until paid in full,
(C3) third, to pay interest due in respect of all Canadian Protective Advances made for the account of Canadian Borrowers until paid in full,
(D4) fourth, to pay the principal of all Canadian Protective Advances made for the account of Canadian Borrowers until paid in full,
(E5) fifth, ratably, to pay any Lender Group Expenses (including cost or expense reimbursements) or indemnities then due to any of the Canadian Lenders under the Loan DocumentsDocuments in respect of Canadian Obligations, until paid in full,
(F6) sixth, ratably, to pay any fees or premiums then due to any of the Lenders in respect of Canadian Lenders Obligations under the Loan Documents until paid in full,
(G7) seventh, to pay interest accrued in respect of the Canadian Swing Loans until paid in full,
(8) eighth, to pay the principal of all Canadian Swing Loans until paid in full,
(9) ninth, ratably, to pay interest accrued in respect of the Canadian Advances (other than Canadian Protective Advances) until paid in full,
(H10) eighthtenth, ratably (i) to Agent, for the account of Agent and Canadian Lenders, to pay the principal of all Canadian Advances until paid in full, (ii) to Canadian Agent, to be held by Canadian Agent, for the benefit of Canadian Issuing Lender (and for the ratable benefit of each of the Canadian Lenders that have an obligation to pay to Canadian Agent, for the account of the Canadian Issuing Lender, a share of each Canadian Letter of Credit Disbursement), as cash collateral in an amount up to 105103% of the Canadian Letter of Credit Usage (to the extent permitted by applicable law, such cash collateral shall be applied to the reimbursement of any Canadian Letter of Credit Disbursement as and when such disbursement occurs and, if a Canadian Letter of Credit expires undrawn, the cash collateral held by Canadian Agent in respect of such Canadian Letter of Credit shall, to the extent permitted by applicable law, be reapplied pursuant to this Section 2.4(b)(iii2.4(b)(ii)(B), beginning with clause tier (A1) hereof), and (iii) ratably, to the Canadian Bank Product Providers based upon amounts then certified by the applicable Canadian Bank Product Provider to Canadian Agent (in form and substance satisfactory to Canadian Agent) to be due and payable to such Canadian Bank Product Providers on account of Bank Product Obligations of Canadian Loan Parties, but (unless Agent otherwise determines in its sole discretion) only to the extent of the Bank Product Reserve Amount then in effect with respect to such Bank Product Obligations,
(I11) nintheleventh, to pay any other Canadian Obligations other than Canadian 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 the 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)(iii), beginning with clause (A) hereof)Lenders,
(J12) tenthtwelfth, ratably to pay any Canadian Obligations owed to Defaulting Lenders, and
(K13) elevenththirteenth, to Canadian Borrowers (to be wired to the Canadian Designated Account) or such other Person entitled thereto under applicable law.
(iviii) The applicable 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 receivereceive from such Agent, subject to a Settlement delay as provided in Section 2.3(e).
(viv) 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 an 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.
(viv) For purposes of Section 2.4(b)(ii) or (iii), “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 or not any of the foregoing would be or is allowed or disallowed in whole or in part in any Insolvency Proceeding.
(viivi) 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.
(viii) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Documents, (i) no Canadian Loan Party shall be liable for any US Obligations, (ii) no security interest granted by any Canadian Loan Party under any of the Loan Documents shall secure any US Obligations, (iii) no amounts payable on account of the Canadian Obligations shall be payable to Agent’s Account, and (iv) no US Obligations shall be charged to the Canadian Loan Account.
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