Distribution of Proceeds of Collateral. All proceeds of any realization on the collateral pursuant to the Security Documents and any payments received by the Agent or any Lender subsequent to and during the continuance of any Event of Default, shall be allocated and distributed by the Agent as follows: (a) First, to the payment of all costs and expenses and other amounts owing to the Agent, including without limitation all attorneys' fees, in connection with the enforcement of the Security Documents and otherwise administering this Agreement; (b) Second, to the payment of all fees, including commitment fees, owing to the Lenders pursuant to this Agreement and the Notes on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances of the Lenders or any other amounts owing to the Agent, for application to payment of such liabilities; (c) Third, to the Lenders on a pro rata basis in accordance with the respective Advances of the Lenders consisting of interest owing to the Lenders under this Agreement and theNotes and net obligations and liabilities relating to Rate Hedging Agreements, for application to payment of such liabilities; (d) Fourth, to the Lenders on a pro rata basis in accordance with the respective Advances of the Lenders consisting of principal (including without limitation any cash collateral for any outstanding Letters of Credit), for application to payment of such liabilities; (e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement on a pro rata basis in accordance with the respective Advances of the Lenders for application to payment of such liabilities; and (f) Sixth, to the Company, its Restricted Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows: (i) First, if applicable to any payments due to the Agent, and (ii) Second, to Loans required to be made by such Defaulting Lender on any borrowing date to the extent such Defaulting Lender fails to make such Loans. Notwithstanding the foregoing, upon the termination of all Commitments and the payment and performance of all of the Advances and other obligations owing hereunder (other than those owing to a Defaulting Lender), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but for the fact that it is a Defaulting Lender.
Appears in 3 contracts
Samples: Credit Agreement (BMG North America LTD), Credit Agreement (BMG North America LTD), Credit Agreement (BMG North America LTD)
Distribution of Proceeds of Collateral. All proceeds of any realization on the collateral Collateral pursuant to the Security Collateral Documents to be applied to the Secured Obligations (subject to any priorities and other provisions in the Collateral Documents, and it is acknowledged that the indebtedness, obligations and liabilities secured by the Capital Stock of SOFEDIT and existing prior to the date hereof shall be entitled to the proceeds of such Collateral before the application thereof to the Secured Obligations) and any payments received by the Agent or any Lender pursuant to the Guaranties subsequent to and during the continuance of any Event of Default, shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all reasonable costs and expenses and other amounts owing to the Agentexpenses, including without limitation all reasonable attorneys' fees, of the Agent in connection with the enforcement of the Security Loan Documents and otherwise administering this Agreement;
(b) Second, to the payment of all fees, fees required to be paid under any Loan Document including commitment fees, owing to the Lenders Lenders, the LC Issuer and Agent pursuant to this Agreement and the Notes Lender Indebtedness on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances Obligations consisting of the Lenders or any other amounts fees owing to the AgentLenders and Agent under the Obligations, for application to payment of such liabilities;
(c) Third, to the Lenders (and/or their Affiliates in connection with any Rate Hedging Obligations which are part of the Secured Obligations), the LC Issuer and the Agent on a pro rata basis in accordance with the respective Advances of the Lenders consisting of interest owing to the Lenders under this Agreement and theNotes and net obligations and liabilities relating to Rate Hedging Agreements, for application to payment of such liabilities;
(d) Fourth, to the Lenders on a pro rata basis in accordance with the respective Advances of the Lenders Secured Obligations consisting of principal (including without limitation any cash collateral for any outstanding Facility Letters of Credit), interest and Rate Hedging Obligations which are part of the Secured Obligations, for application to payment of such liabilitiesSecured Obligations;
(ed) FifthFourth, to the payment of any and all other amounts Secured Obligations owing to the Lenders under this Agreement Lenders, the LC Issuer and the Agent on a pro rata basis in accordance with the respective Advances total amount of such Obligations owing to each of the Lenders and the Agent, for application to payment of such liabilitiesSecured Obligations; and
(fe) SixthFifth, to the CompanyBorrower, its Restricted Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest interest, fees or fees other amounts delivered to the Agent for the account of any Defaulting Lender shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting Lender to the AgentAgent or the LC Issuer, and
(ii) Second, to Loans Credit Extensions required to be made by such Defaulting Lender on any borrowing date Borrowing Date to the extent such Defaulting Lender fails to make such LoansCredit Extensions. Notwithstanding the foregoing, upon the termination of all Commitments and the payment and performance of all of the Advances and other obligations owing hereunder Secured Obligations (other than those owing to a Defaulting Lender), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but for the fact that it is a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Aetna Industries Inc), Credit Agreement (Aetna Industries Inc)
Distribution of Proceeds of Collateral. All proceeds of any realization on the collateral pursuant to the Security Documents and any payments received by the Agent or any Lender pursuant to the Guaranties subsequent to and during the continuance of any Event of Default, shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all reasonable costs and expenses and other amounts owing to the Agentexpenses, including without limitation all reasonable attorneys' fees, of the Agent in connection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all fees, fees required to be paid under any Loan Document including commitment fees, owing to the Lenders and Agent pursuant to this Agreement and the Notes Lender Indebtedness on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances Lender Indebtedness consisting of the Lenders or any other amounts fees owing to the AgentLenders and Agent under the Lender Indebtedness, for application to payment of such liabilities;
(c) Third, to the Lenders and Agent on a pro rata basis in accordance with the respective Advances of the Lenders Lender Indebtedness consisting of interest owing to the Lenders and Agent under this Agreement the Lender Indebtedness, and theNotes and net obligations and liabilities relating to Rate Hedging Agreements, Swaps owing to the Lenders and the Agent under the Lender Indebtedness for application to payment of such liabilities;
(d) Fourth, to the Lenders and the Agent on a pro rata basis in accordance with the respective Advances of the Lenders Lender Indebtedness consisting of principal (including without limitation any cash collateral for any outstanding Letters letters of Creditcredit), for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement and the Agent on a pro rata basis in accordance with the respective Advances total amount of such Indebtedness owing to each of the Lenders and the Agent, for application to payment of such liabilities; and
(f) Sixth, to the Company, its Restricted Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting Lender to the Agent, and
(ii) Second, to Loans required to be made by such Defaulting Lender on any borrowing date to the extent such Defaulting Lender fails to make such Loans. Notwithstanding the foregoing, upon the termination of all Commitments and the payment and performance of all of the Advances and other obligations owing hereunder (other than those owing to a Defaulting Lender), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but for the fact that it is a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (Standard Parking Ii LLC), Credit Agreement (Key Plastics Inc)
Distribution of Proceeds of Collateral. All proceeds of any realization on the collateral pursuant to the Security Documents and any payments received by the Agent or any Lender pursuant to the Guaranties subsequent to and during the continuance of any Event of Default, shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all reasonable costs and expenses and other amounts owing to the Agentexpenses, including without limitation all reasonable attorneys' fees, of the Agent in connection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all fees, fees required to be paid under any Loan Document including commitment facility fees, owing to the Lenders and Agent pursuant to this Agreement and the Notes Lender Indebtedness on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances Lender Indebtedness consisting of the Lenders or any other amounts fees owing to the AgentLenders and Agent under the Lender Indebtedness, for application to payment of such liabilities;
(c) Third, to the Lenders and Agent on a pro rata basis in accordance with the respective Advances of the Lenders Lender Indebtedness consisting of interest owing to the Lenders and Agent under this Agreement and theNotes and net obligations and liabilities relating to Rate Hedging Agreementsthe Lender Indebtedness, for application to payment of such liabilities;
(d) Fourth, to the Lenders and the Agent on a pro rata basis in accordance with the respective Advances of the Lenders Lender Indebtedness consisting of principal (including without limitation any cash collateral for any outstanding Letters letters of Credit)credit) and obligations and liabilities relating to Swaps owing any Lender or the Agent, for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement and the Agent on a pro rata basis in accordance with the respective Advances total amount of such Indebtedness owing to each of the Lenders and the Agent, for application to payment of such liabilities; and
(f) Sixth, to the CompanyBorrowers, its Restricted Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting Lender to the Agent, and
(ii) Second, to Loans required to be made by such Defaulting Lender on any borrowing date to the extent such Defaulting Lender fails to make such Loans. Notwithstanding the foregoing, upon the termination of all Commitments and the payment and performance of all of the Advances and other obligations owing hereunder (other than those owing to a Defaulting Lender), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but for the fact that it is a Defaulting Lender.
Appears in 2 contracts
Samples: Credit Agreement (MSX International Business Services Inc), Credit Agreement (MSX International Inc)
Distribution of Proceeds of Collateral. All proceeds of any realization on the collateral pursuant to the Security Documents and any payments received by the Agent or any Lender subsequent to and during the continuance of any Event of Default, shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all reasonable costs and expenses and other amounts owing to the Agentexpenses, including without limitation all reasonable attorneys' fees, of the Agent in connection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all feesfees required to be paid under any Loan Document or any document or agreement executed in connection with the Swaps, including commitment fees, owing to the Lenders Banks and Agent pursuant to this Agreement and the Notes Bank Indebtedness on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances Bank Indebtedness consisting of the Lenders or any other amounts fees owing to the AgentBanks and Agent under the Bank Indebtedness, for application to payment of such liabilities;
(c) Third, to the Lenders Banks and Agent on a pro rata basis in accordance with the respective Advances of the Lenders Bank Indebtedness consisting of interest owing to the Lenders Banks and Agent under this Agreement the Bank Indebtedness, and theNotes and net obligations and liabilities relating to Rate Hedging Agreements, Swaps owing to the Banks and the Agent under the Bank Indebtedness for application to payment of such liabilities;
(d) Fourth, to the Lenders Banks and the Agent on a pro rata basis in accordance with the respective Advances of the Lenders Bank Indebtedness consisting of principal (including without limitation any cash collateral for any outstanding Letters letters of Creditcredit), for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement Banks and the Agent on a pro rata basis in accordance with the respective Advances total amount of such Indebtedness owing to each of the Lenders Banks and the Agent, for application to payment of such liabilities; and
(f) Sixth, to the CompanyCompanies, its Restricted their Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding .
(h) In connection with the foregoingAssignment, no payments the "Commitment Amount" and "Percentage of principal, interest or fees delivered Total Commitments" set forth on the signature pages next to the Agent for the account name of any Defaulting Lender each Bank shall be delivered by deleted and the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender following shall be a Defaulting Lenderinserted in place thereof: Commitment Amount Percentage of Total Commitments ----------------- ------------------- NBD Bank, N.A. $17,500,000 58.3% KeyBank National Association $12,500,000 41.7%
A. Total Commitment Amount of all Banks $30,000,000 B. 2. From and after the effective date of this Amendment, references to the "Credit Agreement" in the Credit Agreement, the Revolving Credit Notes, the Term Notes, the Security Documents and all other documents executed pursuant to the Credit Agreement shall be held by deemed references to the Agent, Credit Agreement as amended hereby.
3. Each Company represents and warrants to the Co-Agent A and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as followsBanks that:
(i) FirstThe execution, if applicable delivery and performance of this Amendment by the Company and all agreements and documents delivered pursuant hereto by the Company have been duly authorized by all necessary corporate action and do not and will not require any consent or approval of its stockholders, violate any provision of any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award presently in effect having applicability to it or of its articles of incorporation or bylaws, or result in a breach of or constitute a default under any payments due indenture or loan or credit agreement or any other agreement, lease or instrument to which the Company is a party or by which it or its properties may be bound or affected; (ii) no authorization, consent, approval, license, exemption of or filing a registration with any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, is or will be necessary to the Agentvalid execution, delivery or performance by the Company of this Amendment and all agreements and documents delivered pursuant hereto and (iii) this Amendment and all agreements and documents delivered pursuant hereto by the Company are the legal, valid and binding obligations of the Company enforceable against it in accordance with the terms thereof.
(b) After giving effect to the amendments contained herein and effected pursuant hereto, the representations and warranties contained in Article IV of the Credit Agreement are true and correct on and as of the effective date hereof with the same force and effect as if made on and as of such effective date.
(c) No Event of Default (as defined in Article VI of the Credit Agreement) and no Default shall have occurred and be continuing or will exist under the Credit Agreement as of the effective date hereof.
4. This Amendment shall not become effective until:
(a) The Assignment shall have been executed by all parties thereto and delivered to the Co-Agent A;
(b) The Companies shall have executed and delivered Revolving Credit Notes to the Banks reflecting the Commitment Amounts set forth in the Assignment; and
(iic) Second, The Companies shall have executed and delivered the First Amendment to Loans required Security Agreement and such other documents and agreements as the Agent or any Bank may reasonably request.
5. Each Company agrees to be made by such Defaulting Lender on any borrowing date to pay and save Co-Agent A harmless from liability for the extent such Defaulting Lender fails to make such Loans. Notwithstanding the foregoing, upon the termination payment of all Commitments costs and expenses arising in connection with this Amendment, including the reasonable fees and expenses of Dickinson, Wright, Moon, Van Dusen & Xxxxxxx, counsel to Co-Agent A, in connection with the preparation and review of this Amendment, the Assignment and any related documents.
6. The terms used but not defined herein shall have the respective meanings ascribed thereto in the Credit Agreement. Except as expressly contemplated hereby, the Credit Agreement, and all related notes, guaranties, certificates, instruments and other documents, are hereby ratified and confirmed and shall remain in full force and effect, and each Company acknowledges that it has no defense, offset or counterclaim thereunder.
7. This Amendment shall be governed by and construed in accordance with the laws of the State of Michigan.
8. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the payment same instrument and performance of all any of the Advances and other obligations owing hereunder (other than those owing to a Defaulting Lender), parties hereto may execute this Amendment by signing any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but for the fact that it is a Defaulting Lendersuch counterpart.
Appears in 1 contract
Samples: Credit Agreement (Celadon Group Inc)
Distribution of Proceeds of Collateral. (a) All proceeds of any realization on Collateral resulting from the collateral pursuant to the Security Documents and any payments received by the Agent sale or any Lender subsequent to and during the continuance other disposition of any Event of Default, shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all costs and expenses and other amounts owing to the Agent, including without limitation all attorneys' fees, Collateral not in connection with or resulting from any Enforcement Action or the enforcement closing of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all fees, including commitment fees, owing to the Lenders pursuant to this Agreement and the Notes on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances sale of the Lenders Real Estate at a time when no Default or any other amounts owing to Event of Default (each as defined in the Agent, for application to payment of such liabilities;
(cCredit Agreement) Third, to the Lenders on a pro rata basis in accordance with the respective Advances of the Lenders consisting of interest owing to the Lenders under this Agreement has occurred and theNotes and net obligations and liabilities relating to Rate Hedging Agreements, for application to payment of such liabilities;
(d) Fourth, to the Lenders on a pro rata basis in accordance with the respective Advances of the Lenders consisting of principal (including without limitation any cash collateral for any outstanding Letters of Credit), for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement on a pro rata basis in accordance with the respective Advances of the Lenders for application to payment of such liabilities; and
(f) Sixth, to the Company, its Restricted Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender is then continuing shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds distributed as follows:
(i) Firstif the Collateral is the Real Estate, the proceeds shall be distributed first to BA to the extent of the amount required, if applicable any, to any payments due reduce the amount of the Obligations to $10,000,000 and the balance, if any, to the AgentTrustee for application in accordance with the Indenture and (ii) if the Collateral is not the Real Estate, andthe proceeds shall be applied in accordance with the Indenture;
(b) All proceeds of Collateral resulting from any Enforcement Action, the closing of the sale of the Real Estate or hazard or other insurance claims when, in any such case, a Default or Event of Default (each as defined in the Credit Agreement) has occurred and is then continuing shall be distributed in accordance with the following procedure, to the extent permitted by law:
(i) All proceeds of BA Senior Collateral shall be paid to BA for application to the BA Claim with any residual proceeds after the BA Claim is Paid In Full being paid to Trustee;
(ii) Second, All proceeds of Trustee Senior Collateral shall be paid to Loans required to be made by such Defaulting Lender on any borrowing date Trustee for application to the extent Trustee Claim with any residual proceeds after the Trustee Claim is Paid In Full being paid to BA; and
(iii) After the BA Claim and the Trustee Claim have been Paid In Full, the balance of proceeds of Collateral, if any, shall be paid to Borrower or as otherwise required by applicable law.
(c) Should any payment or distribution be received by either Party which Party is not permitted to receive and retain pursuant to the terms hereof, such Defaulting Lender Party shall receive and hold the same in trust, as trustee, for the Party entitled to receive and retain such payment, and shall forthwith deliver the same to such Party in precisely the form received (except for endorsement or assignment where necessary), for application to the Claim of such Party and, until so delivered, the recipient shall hold the same in trust as the property of such Party entitled to the same. If a Party obligated to make an endorsement or assignment pursuant to the provisions of this Section 2.2 fails to make any such Loans. Notwithstanding endorsement or assignment, the foregoingpermitted recipient of such payment or distribution, upon or any of its officers or employees, is hereby irrevocably authorized to make the termination of all Commitments and the payment and performance of all of the Advances and other obligations owing hereunder (other than those owing to a Defaulting Lender), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but for the fact that it is a Defaulting Lendersame.
Appears in 1 contract
Distribution of Proceeds of Collateral. All Subject to the terms of the Intercreditor Agreement, all proceeds of any realization on received by the collateral Agent pursuant to the Security Documents and for application to the Bank Obligations or any payments on any of the liabilities secured by the Security Documents received by the Agent or any Lender subsequent to Bank upon and during the continuance of any Event of Default, Default shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all costs and expenses and other amounts owing to the Agentexpenses, including without limitation all attorneys' fees, of the Agent in connection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all costs, expenses and fees, including without limitation, commitment fees and attorneys fees, owing to the Lenders Banks pursuant to this Agreement and the Notes Bank Obligations on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances Bank Obligations consisting of the Lenders or any other amounts fees, costs and expenses owing to the AgentBanks under the Bank Obligations, for application to payment of such liabilities;
(c) Third, to the Lenders Banks on a pro rata basis in accordance with the respective Advances of the Lenders Bank Obligations consisting of interest owing to the Lenders Banks under this Agreement and theNotes and net obligations and liabilities relating to Rate Hedging Agreementsthe Bank Obligations, for application to payment of such liabilities;
(d) Fourth, to the Lenders Banks on a pro rata basis in accordance with the respective Advances of the Lenders Bank Obligations consisting of principal (including without limitation any cash collateral for any outstanding Letters of Credit)) owing to the Banks under the Bank Obligations, for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement Banks on a pro rata basis in accordance with the respective Advances total amount of such Indebtedness owing to each of the Lenders Banks, for application to payment of such liabilities; and
(f) Sixth, to the Company, its Restricted Subsidiaries Borrowers or such other Person person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender Bank shall be delivered by the Agent to such Defaulting LenderBank. Instead, such payments shall, for so long as such Defaulting Lender Bank shall be a Defaulting LenderBank, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting Bank to the Agent, ; and
(ii) Second, to Loans required to be made by such Defaulting Lender Bank on any borrowing date to the extent such Defaulting Lender Bank fails to make such Loans. Notwithstanding the foregoing, upon the termination of all the Commitments and the payment and performance of all of the Advances and other obligations owing hereunder (other than those owing to a Defaulting LenderBank), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting LenderBank, pro rata in proportion to amounts that would be due to each Defaulting Lender Bank but for the fact that it is a Defaulting LenderBank.
Appears in 1 contract
Samples: Loan Agreement (Jabil Circuit Inc)
Distribution of Proceeds of Collateral. All proceeds of any realization on the collateral pursuant to the Security Documents and any payments received by the Agent or any Lender subsequent to and during the continuance of any Event of Default, shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all costs and expenses and other amounts owing to the Agent, including without limitation all attorneys' fees, in connection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all fees, including commitment fees, owing to the Lenders pursuant to this Agreement and the Notes on a pro rata basis (other than Acceptance Fees and fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances of the Lenders or any other amounts owing to the Agent, for application to payment of such liabilities;
(c) Third, to the Lenders and beneficiaries of the Mexican Facility Tranche A Guaranty on a pro rata basis in accordance with the respective Advances of the Lenders consisting of interest owing to the Lenders under this Agreement and theNotes the Notes, the obligations under the Mexican Facility Tranche A Guaranty allocable to interest on the Mexican Facility Tranche A Loans and net obligations and liabilities relating to Rate Hedging Agreements, for application to payment of such liabilities;
(d) Fourth, to the Lenders and beneficiaries of the Mexican Facility Tranche A Guaranty on a pro rata basis in accordance with the respective Advances of the Lenders consisting of principal (including without limitation any cash collateral for any outstanding Letters of Credit)) and the respective obligations under the Mexican Facility Tranche A Guaranty allocable to principal on the Mexican Facility Tranche A Loans, for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement on a pro rata basis in accordance with the respective Advances of the Lenders for application to payment of such liabilities; and
(f) Sixth, to the Company, its Restricted Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due to the Agent, and
(ii) Second, to Loans required to be made by such Defaulting Lender on any borrowing date to the extent such Defaulting Lender fails to make such Loans. Notwithstanding the foregoing, upon the termination of all Commitments and the payment and performance of all of the Advances and other obligations owing hereunder (other than those owing to a Defaulting Lender), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but for the fact that it is a Defaulting Lender.
Appears in 1 contract
Distribution of Proceeds of Collateral. All proceeds of any realization on the collateral pursuant to the Security Documents and any payments received by the Agent or any Lender subsequent pursuant to the Guaranties after the Loans become due and during the continuance of any Event of Defaultpayable (whether by acceleration or otherwise), shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all reasonable costs and expenses and other amounts owing to the Agentexpenses, including without limitation all reasonable attorneys' fees, in connection of the Agent inconnection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all fees, fees required to be paid under any Loan Document including commitment fees, owing to the Lenders pursuant to this Agreement Agent and the Notes Revolving Lenders on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances Lender Indebtedness consisting of the Lenders or any other amounts fees owing to the AgentAgent and the Revolving Lenders, for application to payment of such liabilities;
(c) Third, to the Lenders on a pro rata basis in accordance with the respective Advances payment of the Lenders Lender Indebtedness consisting of interest owing to the Lenders under this Agreement Revolving Lenders, and theNotes and net obligations and liabilities relating to Rate Hedging Agreements, Swaps owing to the Revolving Lenders for application to payment of such liabilities;
(d) Fourth, to the Revolving Lenders and the Agent on a pro rata basis in accordance with the respective Advances of the Lenders Lender Indebtedness consisting of principal of Revolving Credit Advances (including without limitation any cash collateral for any outstanding Letters letters of Creditcredit), for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Revolving Lenders under this Agreement and the Agent on a pro rata basis in accordance with the respective Advances total amount of such Indebtedness owing to each of the Revolving Lenders and the Agent, for application to payment of such liabilities; and
(f) Sixth, to the payment of all fees required to be paid under any Loan Document, owing to the Lenders holding a portion of the Term Loan on a pro rata basis in accordance with the Lender Indebtedness consisting of fees owing to the Lenders holding a portion of the Term Loan, for application to payment of such liabilities;
(g) Seventh, to the Agent for the benefit of the Lenders holding a portion of the Term Loan on a pro rata basis in accordance with the Lender Indebtedness consisting of interest owing to each of such Lenders holding a portion of the Term Loan, and obligations and liabilities relating to Swaps owing to the Lenders holding a portion of the Term Loan for application to payment of such liabilities;
(h) Eighth, to the Lenders holding a portion of the Term Loan on a pro rata basis in accordance with the Lender Indebtedness consisting of principal (including without limitation, any cash collateral for any outstanding Existing Letters of Credit) of the Term Loan, for application to payment of such liabilities;
(i) Ninth, to the payment of any and all other amounts owing to the Lenders holding a portion of the Term Loan on a pro rata basis in accordance with the total amount of such Indebtedness owing to each of such Lenders, for application to payment of such liabilities; and
(j) Tenth, to the Company, its Restricted Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting Lender to the Agent, and
(ii) Second, to purchase participations in Loans required to be made by such Defaulting Lender on any borrowing date to the extent such Defaulting Lender fails failed to make such Loans. Notwithstanding the foregoing, upon the termination of all Commitments and the payment and performance of all of the Advances Loans and other obligations owing to the Agent and the Lenders hereunder (other than those owing to a Defaulting Lender), any funds then held in escrow by the Agent pursuant to the preceding sentence paragraph shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but for the fact that it is a Defaulting Lender.
Appears in 1 contract
Samples: Credit Agreement (Ap Holdings Inc)
Distribution of Proceeds of Collateral. All proceeds of any realization on the collateral pursuant to the Security Documents and any payments received by the either Agent or any Lender pursuant to the Guaranties subsequent to and during the continuance of any Event of Default, shall be allocated and distributed by the Administrative Agent as follows:
(a) First, to the payment of all costs and expenses and other amounts owing to the Agentexpenses, including without limitation all attorneys' fees, of the Administrative Agent in connection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all fees, including commitment fees, owing to the Lenders and Agents pursuant to this Agreement and the Notes Lender Indebtedness on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances Lender Indebtedness consisting of the Lenders or any other amounts fees owing to the AgentLenders and Agents under the Lender Indebtedness, for application to payment of such liabilities;
(c) Third, to the Lenders and Agents on a pro rata basis in accordance with the respective Advances of the Lenders Lender Indebtedness consisting of interest owing to the Lenders and Agents under this Agreement and theNotes and net obligations and liabilities relating to Rate Hedging Agreementsthe Lender Indebtedness, for application to payment of such liabilities;
(d) Fourth, to the Lenders and the Agents on a pro rata basis in accordance with the respective Advances of the Lenders Lender Indebtedness consisting of principal (including without limitation any cash collateral for any outstanding Letters letters of Credit)credit) and obligations and liabilities relating to Swaps owing to the Lenders and the Agents under the Lender Indebtedness, for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement and the Agents on a pro rata basis in accordance with the respective Advances total amount of such Indebtedness owing to each of the Lenders and the Agents, for application to payment of such liabilities; and
(f) Sixth, to the Company, its Restricted Subsidiaries or such other Person person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due to the Agent, and
(ii) Second, to Loans required to be made by such Defaulting Lender on any borrowing date to the extent such Defaulting Lender fails to make such Loans. Notwithstanding the foregoing, upon the termination of all Commitments and the payment and performance of all of the Advances and other obligations owing hereunder (other than those owing to a Defaulting Lender), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but for the fact that it is a Defaulting Lender.
Appears in 1 contract
Samples: Loan Agreement (Iae Inc)
Distribution of Proceeds of Collateral. All proceeds of any realization on the collateral pursuant to the Security Documents and any payments received by the Agent or any Lender subsequent pursuant to the Guaranties after the Loans become due and during the continuance of any Event of Defaultpayable (whether by acceleration or otherwise), shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all reasonable costs and expenses and other amounts owing to the Agentexpenses, including without limitation all reasonable attorneys' ’ fees, of the Agent in connection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all fees, fees required to be paid under any Loan Document including commitment fees, owing to the Lenders pursuant to this Agreement Agent and the Notes Revolving Lenders on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances Lender Indebtedness consisting of the Lenders or any other amounts fees owing to the AgentAgent and the Revolving Lenders, for application to payment of such liabilities;
(c) Third, to the Lenders on a pro rata basis in accordance with the respective Advances payment of the Lenders Lender Indebtedness consisting of interest owing to the Lenders under this Agreement Revolving Lenders, and theNotes and net obligations and liabilities relating to Rate Hedging Agreements, Swaps owing to the Revolving Lenders for application to payment of such liabilities;
(d) Fourth, to the Revolving Lenders and the Agent on a pro rata basis in accordance with the respective Advances of the Lenders Lender Indebtedness consisting of principal of Revolving Credit Advances (including without limitation any cash collateral for any outstanding Letters letters of Creditcredit), for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Revolving Lenders under this Agreement and the Agent on a pro rata basis in accordance with the respective Advances total amount of such Indebtedness owing to each of the Revolving Lenders and the Agent, for application to payment of such liabilities; and
(f) Sixth, to the payment of all fees required to be paid under any Loan Document, owing to the Lenders holding a portion of the Term Loan on a pro rata basis in accordance with the Lender Indebtedness consisting of fees owing to the Lenders holding a portion of the Term Loan, for application to payment of such liabilities;
(g) Seventh, to the Agent for the benefit of the Lenders holding a portion of the Term Loan on a pro rata basis in accordance with the Lender Indebtedness consisting of interest owing to each of such Lenders holding a portion of the Term Loan, and obligations and liabilities relating to Swaps owing to the Lenders holding a portion of the Term Loan for application to payment of such liabilities;
(h) Eighth, to the Lenders holding a portion of the Term Loan on a pro rata basis in accordance with the Lender Indebtedness consisting of principal of the Term Loan, for application to payment of such liabilities;
(i) Ninth, to the payment of any and all other amounts owing to the Lenders holding a portion of the Term Loan on a pro rata basis in accordance with the total amount of such Indebtedness owing to each of such Lenders, for application to payment of such liabilities; and
(j) Tenth, to the Company, its Restricted Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting Lender to the Agent, and
(ii) Second, to purchase participations in Loans required to be made by such Defaulting Lender on any borrowing date to the extent such Defaulting Lender fails failed to make such Loans. Notwithstanding the foregoing, upon the termination of all Commitments and the payment and performance of all of the Advances Loans and other obligations owing to the Agent and the Lenders hereunder (other than those owing to a Defaulting Lender), any funds then held in escrow by the Agent pursuant to the preceding sentence paragraph shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but for the fact that it is a Defaulting Lender.
Appears in 1 contract
Distribution of Proceeds of Collateral. All proceeds of any realization on received by the collateral Agent pursuant to the Security Documents and for application to the Bank Obligations or any payments on any of the liabilities secured by the Security Documents received by the Agent or any Lender subsequent to Bank upon and during the continuance of any Event of Default, Default shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all costs and expenses and other amounts owing to the Agentexpenses, including without limitation all attorneys' fees, of the Agent in connection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all costs, expenses and fees, including without limitation, commitment fees and attorneys fees, owing to the Lenders Banks pursuant to this Agreement and the Notes Bank Obligations on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances Bank Obligations consisting of the Lenders or any other amounts fees, costs and expenses owing to the AgentBanks under the Bank Obligations, for application to payment of such liabilities;
(c) Third, to the Lenders Banks on a pro rata basis in accordance with the respective Advances of the Lenders Bank Obligations consisting of interest owing to the Lenders Banks under this Agreement and theNotes and net obligations and liabilities relating to Rate Hedging Agreementsthe Bank Obligations, for application to payment of such liabilities;
(d) Fourth, to the Lenders Banks on a pro rata basis in accordance with the respective Advances of the Lenders Bank Obligations consisting of principal (including without limitation any cash collateral for any outstanding Letters of Credit)) owing to the Banks under the Bank Obligations, for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement Banks on a pro rata basis in accordance with the respective Advances total amount of such Indebtedness owing to each of the Lenders Banks, for application to payment of such liabilities; and
(f) Sixth, to the Company, its Restricted Subsidiaries Borrowers or such other Person person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender Bank shall be delivered by the Agent to such Defaulting LenderBank. Instead, such payments shall, for so long as such Defaulting Lender Bank shall be a Defaulting LenderBank, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting Bank to the Agent, ; and
(ii) Second, to Loans required to be made by such Defaulting Lender Bank on any borrowing date to the extent such Defaulting Lender Bank fails to make such Loans. Notwithstanding the foregoing, upon the termination of all the Commitments and the payment and performance of all of the Advances and other obligations owing hereunder (other than those owing to a Defaulting LenderBank), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting LenderBank, pro rata in proportion to amounts that would be due to each Defaulting Lender Bank but for the fact that it is a Defaulting LenderBank.
Appears in 1 contract
Samples: Loan Agreement (Jabil Circuit Inc)
Distribution of Proceeds of Collateral. All proceeds of any realization on the collateral pursuant to the Security Documents and any payments received by the Agent or any Lender subsequent pursuant to the Guaranties after the Loans become due and during the continuance of any Event of Defaultpayable (whether by acceleration or otherwise), shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all reasonable costs and expenses and other amounts owing to the Agentexpenses, including without limitation all reasonable attorneys' fees, of the Agent in connection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all fees, fees required to be paid under any Loan Document including commitment fees, owing to the Lenders pursuant to this Agreement Agent and the Notes Revolving Lenders on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances Lender Indebtedness consisting of the Lenders or any other amounts fees owing to the AgentAgent and the Revolving Lenders, for application to payment of such liabilities;
(c) Third, to the Lenders on a pro rata basis in accordance with the respective Advances payment of the Lenders Lender Indebtedness consisting of interest owing to the Lenders under this Agreement Revolving Lenders, and theNotes and net obligations and liabilities relating to Rate Hedging Agreements, Swaps owing to the Revolving Lenders for application to payment of such liabilities;
(d) Fourth, to the Revolving Lenders and the Agent on a pro rata basis in accordance with the respective Advances of the Lenders Lender Indebtedness consisting of principal of Revolving Credit Advances (including without limitation any cash collateral for any outstanding Letters letters of Creditcredit), for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Revolving Lenders under this Agreement and the Agent on a pro rata basis in accordance with the respective Advances total amount of such Indebtedness owing to each of the Revolving Lenders and the Agent, for application to payment of such liabilities; and
(f) Sixth, to the payment of all fees required to be paid under any Loan Document, owing to the Lenders holding a portion of the Term Loan on a pro rata basis in accordance with the Lender Indebtedness consisting of fees owing to the Lenders holding a portion of the Term Loan, for application to payment of such liabilities;
(g) Seventh, to the Agent for the benefit of the Lenders holding a portion of the Term Loan on a pro rata basis in accordance with the Lender Indebtedness consisting of interest owing to each of such Lenders holding a portion of the Term Loan, and obligations and liabilities relating to Swaps owing to the Lenders holding a portion of the Term Loan for application to payment of such liabilities;
(h) Eighth, to the Lenders holding a portion of the Term Loan on a pro rata basis in accordance with the Lender Indebtedness consisting of principal (including without limitation, any cash collateral for any outstanding Existing Letters of Credit) of the Term Loan, for application to payment of such liabilities;
(i) Ninth, to the payment of any and all other amounts owing to the Lenders holding a portion of the Term Loan on a pro rata basis in accordance with the total amount of such Indebtedness owing to each of such Lenders, for application to payment of such liabilities; and
(j) Tenth, to the Company, its Restricted Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting Lender to the Agent, and
(ii) Second, to purchase participations in Loans required to be made by such Defaulting Lender on any borrowing date to the extent such Defaulting Lender fails failed to make such Loans. Notwithstanding the foregoing, upon the termination of all Commitments and the payment and performance of all of the Advances Loans and other obligations owing to the Agent and the Lenders hereunder (other than those owing to a Defaulting Lender), any funds then held in escrow by the Agent pursuant to the preceding sentence paragraph shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but for the fact that it is a Defaulting Lender.
Appears in 1 contract
Distribution of Proceeds of Collateral. All Subject to the terms of the Intercreditor Agreement, all proceeds of any realization on received by the collateral Agent pursuant to the Security Documents and for application to the Bank Obligations or any payments on any of the liabilities secured by the Security Documents received by the Agent or any Lender subsequent to Bank upon and during the continuance of any Event of Default, Default shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all costs and expenses and other amounts owing to the Agentexpenses, including without limitation all reasonable attorneys' fees, of the Agent in connection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all costs, expenses and fees, including commitment without limitation, facility fees and reasonable attorneys fees, owing to the Lenders Banks pursuant to this Agreement and the Notes Bank Obligations on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances Bank Obligations consisting of the Lenders or any other amounts fees, costs and expenses owing to the AgentBanks under the Bank Obligations, for application to payment of such liabilities;
(c) Third, to the Lenders Banks on a pro rata basis in accordance with the respective Advances of the Lenders Bank Obligations consisting of interest owing to the Lenders Banks under this Agreement and theNotes and net obligations and liabilities relating to Rate Hedging Agreementsthe Bank Obligations, for application to payment of such liabilities;
(d) Fourth, to the Lenders Banks on a pro rata basis in accordance with the respective Advances of the Lenders Bank Obligations consisting of principal (including including, without limitation limitation, any cash collateral for any outstanding Letters of Credit)Credit as contemplated in Section 6.4 or as otherwise contemplated by this Agreement) owing to the Banks under the Bank Obligations, for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement Banks on a pro rata basis in accordance with the respective Advances total amount of such Indebtedness owing to each of the Lenders Banks, for application to payment of such liabilities; and
(f) Sixth, to the Company, its Restricted Subsidiaries Borrowers or such other Person person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender Bank shall be delivered by the Agent to such Defaulting LenderBank. Instead, such payments shall, for so long as such Defaulting Lender Bank shall be a Defaulting LenderBank, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting Bank to the Agent, ; and
(ii) Second, to Loans required to be made by such Defaulting Lender Bank on any borrowing date to the extent such Defaulting Lender Bank fails to make such Loans. Notwithstanding the foregoing, upon the termination of all the Commitments and the payment and performance of all of the Advances and other obligations owing hereunder (other than those owing to a Defaulting LenderBank), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting LenderBank, pro rata in proportion to amounts that would be due to each Defaulting Lender Bank but for the fact that it is a Defaulting LenderBank.
Appears in 1 contract
Samples: Loan Agreement (Jabil Circuit Inc)
Distribution of Proceeds of Collateral. All proceeds of any realization on the collateral pursuant to the Security Documents and any payments received by the Agent or any Lender subsequent to and during the continuance of any Event of Default, shall be allocated and distributed by the Agent as follows:
(a) First, to All Net Cash Proceeds resulting from the payment sale or other disposition of all costs and expenses and other amounts owing to the Agent, including without limitation all attorneys' feesCollateral, in connection with the enforcement or resulting from any Enforcement Action or any distribution in a plan of the Security Documents and otherwise administering this Agreement;reorganization or liquidation in any Insolvency Proceeding, shall be distributed, subject to clause
(b) Secondbelow, to the payment of all fees, including commitment fees, owing to the Lenders pursuant to this Agreement and the Notes on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances of the Lenders or any other amounts owing to the Agent, for application to payment of such liabilities;
(c) Third, to the Lenders on a pro rata basis in accordance with the respective Advances of the Lenders consisting of interest owing to the Lenders under this Agreement and theNotes and net obligations and liabilities relating to Rate Hedging Agreements, for application to payment of such liabilities;
(d) Fourth, to the Lenders on a pro rata basis in accordance with the respective Advances of the Lenders consisting of principal (including without limitation any cash collateral for any outstanding Letters of Credit), for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement on a pro rata basis in accordance with the respective Advances of the Lenders for application to payment of such liabilities; and
(f) Sixth, to the Company, its Restricted Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) Firstif the Collateral is Revolving Credit Priority Collateral, if applicable the Net Cash Proceeds therefrom shall be distributed first to the Revolving Lender for application to the Revolving Priority Obligations until Paid In Full (provided that for the avoidance of doubt, at the option of the Revolving Lender, the Revolving Obligations may be repaid or paid in full without a permanent reduction of the commitments thereunder in connection with the sale or other disposition of Collateral pursuant to the Revolving Loan Documents), then (notwithstanding that the Revolving Obligations may have been repaid in full without a permanent reduction of the commitments pursuant to the proviso above) to the Term Loan Agent for application to the Term Loan Priority Obligations until Paid In Full, then to the Revolving Lender for application to any payments due Revolving Excess Obligations in accordance with the Revolving Loan Documents and then to the Agent, andTerm Loan Agent for application to any Term Loan Excess Obligations in accordance with the Term Loan Documents;
(ii) Secondif the Collateral is Term Loan Priority Collateral, the Net Cash Proceeds thereof shall be distributed first to the Term Loan Agent for application to the Term Loan Priority Obligations until Paid In Full, then to the Revolving Lender for application to the Revolving Priority Obligations until Paid In Full, then to the Term Loan Agent for application to any Term Loan Excess Obligations in accordance with the Term Loan Documents and then to the Revolving Lender for application to any Revolving Excess Obligations in accordance with the Revolving Loan Documents; and
(iii) if Revolving Credit Priority Collateral and Term Loan Priority Collateral is sold or otherwise disposed of in a single transaction or series of related transactions with respect to which the terms of such transaction do not contain an allocation of the purchase consideration between such types of Priority Collateral, then the Net Cash Proceeds thereof shall be distributed first, to Loans required each of the Term Loan Agent and the Revolving Lender for the payment of reasonable amounts and expenses (including the reasonable fees and expenses of counsel) incurred by the Term Loan Agent or the Revolving Lender, as applicable, in connection with this agreement and its duties hereunder, and then to Revolving Lender for application to the Revolving Obligations in an amount up to the sum of the book value of Accounts (as defined in the Revolving Loan Agreement) and the Net Orderly Liquidation Value (as defined in the Revolving Loan Agreement) of Inventory (as defined in the Revolving Loan Agreement) (such amount to be made determined as of the date of the applicable transaction by the Revolving Lender and the Term Loan Agent (acting at the direction of the Required Lenders (as defined in the Term Loan Agreement)LC Provider), then to the Term Loan Agent for application to the Term Loan Obligations until Paid In Full, and then to the Revolving Lender for application to the Revolving Obligations until Paid In Full. \\LA - 765212/000003 - 2075087 v5 For purposes of this Section 2.4(a), (x) Net Cash Proceeds shall be calculated net of any amounts allocated or carved out for reasonable and customary professional fees or expenses (including the fees and expenses of the Term Loan Agent and its counsel in connection with any Enforcement Action) (excluding any such Defaulting amounts paid to an Affiliate of the Loan Parties), which amounts shall not be deemed to be received by any Secured Party or applied to any obligations, (y) notwithstanding anything to the contrary contained herein, it is agreed that all Net Cash Proceeds resulting from an Enforcement Action by either Secured Party (for purposes of clarity including a sale or other disposition following the occurrence and during the continuance of an “Event of Default” as defined in the Revolving Credit Agreement or the Term LoanReimbursement Agreement) of any of the applicable Priority Collateral with respect thereto and the required release of Liens thereon by the non-Priority Secured Party under Section 2.3(b)(i) or (iii) or Section 2.3(d)(i) or (iii) of this Agreement, as applicable) shall be applied to (I) the Revolving Obligations by the Revolving Lender on any borrowing date to permanently reduce the Revolving Obligations and, to the extent such Defaulting Lender fails applied to make such Loans. Notwithstanding the foregoing, upon the termination of all Commitments and the payment and performance of all outstanding principal amount of the Advances Revolving Obligations, the revolving commitments of the Revolving Lender under the Revolving Credit Agreement (it being understood that, if the revolving commitments have not then been terminated, that such payment shall be accompanied by an equivalent permanent reserve against Excess Availability) and other obligations owing hereunder (other than those owing to a Defaulting Lender), any funds then held in escrow II) the Term Loan Obligations by the Agent pursuant Term Loan Agent, and (z) all applications of Net Cash Proceeds to the preceding sentence any specified obligations shall be distributed to each Defaulting Lender, pro rata made in proportion to amounts that would be due to each Defaulting Lender but for accordance with the fact that it is a Defaulting LenderLoan Documents governing such obligations.
Appears in 1 contract
Distribution of Proceeds of Collateral. (a) All proceeds Net Cash Proceeds of any realization on the collateral pursuant to the Security Documents and any payments Revolving Credit Priority Collateral received by the either Agent or any Lender subsequent to and during the continuance of Claimholder in connection with any Event of Default, Enforcement Action shall be allocated distributed first to the Revolving Agent for application to the Revolving Priority Obligations until Paid In Full, then to the Notes Agent for application to the Notes Obligations until Paid In Full, then to the Revolving Agent for application to any remaining Revolving Obligations. For purposes of this Section 2.4(a), it is agreed that (i) if Revolving Credit Priority Collateral and distributed by Notes Collateral are sold or otherwise disposed of in a single transaction or series of related transactions with respect to which the Agent as follows:
terms of such transaction do not contain an allocation of the purchase consideration between such types of Collateral, then the Agents shall work jointly and in good faith to determine the allocation of proceeds from such disposition for a period of not less than thirty (a30) Firstdays, and if at the end of such thirty (30) day period, the Agents in good faith have been unable to reach mutual agreement on such allocation, the Agents shall retain an independent appraiser reasonably satisfactory to both Agents for such purpose, whose determination of such allocation shall be binding on all parties, (ii) all such proceeds when applied to (x) the Revolving Obligations shall be applied to permanently reduce the Revolving Obligations and, to the payment of all costs and expenses and other amounts owing extent applied to the Agentoutstanding principal amount of the Revolving Obligations, including without limitation the lending commitments of the Revolving Lenders under the Revolving Credit Agreement (it being understood that, if the revolving commitments have not then been terminated, that such payment shall be accompanied by an equivalent permanent reserve against Availability) and (y) the Notes Obligations shall be applied to permanently reduce the Notes Obligations, (iii) all attorneys' fees, applications of such proceeds to any specified obligations shall be made in connection accordance with the enforcement of the Security Loan Documents governing such obligations, and otherwise administering this Agreement;(iv) Net Cash Proceeds shall be calculated net of, without duplication, any amounts allocated or carved out for professional fees or expenses, which amounts shall not be deemed to be received by any Agent or applied to any obligations.
(b) SecondUntil the Payment In Full of the Revolving Obligations, any proceeds of Revolving Credit Priority Collateral which may be received by the Notes Agent in connection with an Enforcement Action in respect of the Revolving Credit Priority Collateral shall be segregated and held in trust and promptly paid over to the payment of all fees, including commitment fees, owing to the Lenders pursuant to this Agreement and the Notes on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances of the Lenders or any other amounts owing to the Revolving Agent, for application the benefit of the Revolving Agent and the Revolving Claimholders, in the same form as received, with any necessary endorsements. If the Notes Agent fails to payment of make any such liabilities;endorsement or assignment, the Revolving Agent is authorized to make the same as agent for the Notes Agent (which authorization, being coupled with an interest, is irrevocable).
(c) Third, to The provisions of this Section 2.4 are solely for the Lenders on a pro rata basis in accordance with the respective Advances benefit of the Lenders consisting Revolving Agent, on behalf of interest owing to itself and the Lenders under this Agreement and theNotes and net obligations and liabilities relating to Rate Hedging AgreementsRevolving Claimholders, for application to payment of such liabilities;
(d) Fourth, to on the Lenders on a pro rata basis in accordance with the respective Advances of the Lenders consisting of principal (including without limitation any cash collateral for any outstanding Letters of Credit), for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement on a pro rata basis in accordance with the respective Advances of the Lenders for application to payment of such liabilities; and
(f) Sixth, to the Company, its Restricted Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agentone hand, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due to the Notes Agent, and
(ii) Second, to Loans required to be made by such Defaulting Lender on any borrowing date to the extent such Defaulting Lender fails to make such Loans. Notwithstanding the foregoing, upon the termination behalf of all Commitments itself and the payment Note Claimholders, on the other hand, and performance of all of the Advances and other obligations owing hereunder (other than those owing to a Defaulting Lender), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but not for the fact that it is a Defaulting Lenderbenefit of any other Person.
Appears in 1 contract
Distribution of Proceeds of Collateral. All Subject to the terms of the Intercreditor Agreement, all proceeds of any realization on received by the collateral Agent pursuant to the Security Documents and for application to the Bank Obligations or any payments on any of the liabilities secured by the Security Documents received by the Agent or any Lender subsequent to Bank upon and during the continuance of any Event of Default, Default shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all costs and expenses and other amounts owing to the Agentexpenses, including without limitation all reasonable attorneys' fees, of the Agent in connection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all costs, expenses and fees, including commitment without limitation, facility fees and reasonable attorneys fees, owing to the Lenders Banks pursuant to this Agreement and the Notes Bank Obligations on a pro rata basis (other than fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances Bank Obligations consisting of the Lenders or any other amounts fees, costs and expenses owing to the AgentBanks under the Bank Obligations, for application to payment of such liabilities;
(c) Third, to the Lenders Banks on a pro rata basis in accordance with the respective Advances of the Lenders Bank Obligations consisting of interest owing to the Lenders Banks under this Agreement and theNotes and net obligations and liabilities relating to Rate Hedging Agreementsthe Bank Obligations, for application to payment of such liabilities;
(d) Fourth, to the Lenders Banks on a pro rata basis in accordance with the respective Advances of the Lenders Bank Obligations consisting of principal (including without limitation any cash collateral for any outstanding Letters of Credit)owing to the Banks under the Bank Obligations, for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement Banks on a pro rata basis in accordance with the respective Advances total amount of such Indebtedness owing to each of the Lenders Banks, for application to payment of such liabilities; and
(f) Sixth, to the Company, its Restricted Subsidiaries Borrowers or such other Person person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender Bank shall be delivered by the Agent to such Defaulting LenderBank. Instead, such payments shall, for so long as such Defaulting Lender Bank shall be a Defaulting LenderBank, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due from such Defaulting Bank to the Agent, ; and
(ii) Second, to Loans required to be made by such Defaulting Lender Bank on any borrowing date to the extent such Defaulting Lender Bank fails to make such Loans. Notwithstanding the foregoing, upon the termination of all the Commitments and the payment and performance of all of the Advances and other obligations owing hereunder (other than those owing to a Defaulting LenderBank), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting LenderBank, pro rata in proportion to amounts that would be due to each Defaulting Lender Bank but for the fact that it is a Defaulting LenderBank.
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Distribution of Proceeds of Collateral. All proceeds of any realization on the collateral pursuant to the Security Documents and any payments received by the Agent or any Lender subsequent to and during the continuance of any Event of Default, shall be allocated and distributed by the Agent as follows:
(a) First, to the payment of all costs and expenses and other amounts owing to the Agent, including without limitation all attorneys' fees, in connection with the enforcement of the Security Documents and otherwise administering this Agreement;
(b) Second, to the payment of all fees, including commitment fees, owing to the Lenders pursuant to this Agreement and the Notes on a pro rata basis (other than Acceptance Fees and fees which are payable solely to the Agent or any Lender directly) in accordance with the respective Advances of the Lenders or any other amounts owing to the Agent, for application to payment of such liabilities;
(c) Third, to the Lenders on a pro rata basis in accordance with the respective Advances of the Lenders consisting of interest owing to the Lenders under this Agreement and theNotes the Notes and net obligations and liabilities relating to Rate Hedging Agreements, for application to payment of such liabilities;
(d) Fourth, to the Lenders on a pro rata basis in accordance with the respective Advances of the Lenders consisting of principal (including without limitation any cash collateral for any outstanding Letters of Credit), for application to payment of such liabilities;
(e) Fifth, to the payment of any and all other amounts owing to the Lenders under this Agreement on a pro rata basis in accordance with the respective Advances of the Lenders for application to payment of such liabilities; and
(f) Sixth, to the Company, its Restricted Subsidiaries or such other Person as may be legally entitled thereto. Notwithstanding the foregoing, no payments of principal, interest or fees delivered to the Agent for the account of any Defaulting Lender shall be delivered by the Agent to such Defaulting Lender. Instead, such payments shall, for so long as such Defaulting Lender shall be a Defaulting Lender, be held by the Agent, and the Agent is hereby authorized and directed by all parties hereto to hold such funds in escrow and apply such funds as follows:
(i) First, if applicable to any payments due to the Agent, and
(ii) Second, to Loans required to be made by such Defaulting Lender on any borrowing date to the extent such Defaulting Lender fails to make such Loans. Notwithstanding the foregoing, upon the termination of all Commitments and the payment and performance of all of the Advances and other obligations owing hereunder (other than those owing to a Defaulting Lender), any funds then held in escrow by the Agent pursuant to the preceding sentence shall be distributed to each Defaulting Lender, pro rata in proportion to amounts that would be due to each Defaulting Lender but for the fact that it is a Defaulting Lender.
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