Promise to Pay; Manner of Payment. (a) On each Payment Date and on the first (1st) Business Day after Agent has transferred funds received under clause (ii) of the last sentence of Section 2.4(a) for distribution to the Collection Account, prior to the occurrence and continuance of an Event of Default and subject to the other terms and conditions of this Agreement, all Available Amounts received during the month most recently ended shall be paid from the Collection Account by Agent to the following Persons in the following order of priority, to the extent amounts are due and owing to such Persons: (i) to Agent, for any indemnities, costs, fees or expenses owed to Agent to the extent not previously reimbursed or paid; (ii) to Agent, for the benefit of the Lenders on a pari-passu basis, first, an amount equal to any protective advances made pursuant to Section 2.8 hereof, together with all interest owed with respect to such protective advances, second, any indemnities, costs, fees or expenses owed to Lenders, third, all accrued and unpaid interest on the Obligations charged at the Default Rate and fourth, all other accrued and unpaid interest on the Obligations, in each case, to the extent not previously reimbursed or paid; (iii) Investment Adviser, all accrued and unpaid Advisory Fees; (iv) to Blocked Account Bank, for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Blocked Account and/or any Loan Clearing Account; (v) to the Lockbox Agent (if any), for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Lockbox Account; (vi) to the Custodian, for any indemnities, costs, fees or expenses owed the Custodian pursuant to (a) the Custody Agreement dated as of May 2, 2013 by and between Custodian and Harvest, as amended from time to time, and (b) the Custodial Agreement to the extent not previously reimbursed or paid; (vii) to (A) the Sub-Administrator, for any indemnities, costs, fees or expenses owed the Sub-Administrator with respect to the Delegated Functions pursuant to the Sub-Administration Agreement to the extent not previously reimbursed or paid, and (B) the Backup Administrator, (if any) for any indemnities, costs, fees or expenses owed the Backup Administrator pursuant to the Backup Administration Agreement to the extent not previously reimbursed or paid; (viii) to Agent, for the benefit of Lenders on a pari-passu basis, an amount equal to the amount required (if any) to cause Borrower to be in compliance with Section 2.6 hereof; (ix) during the Amortization Period, to Agent, for the benefit of Lenders on a pari-passu basis, any amounts due and owing pursuant to Section 2.7(b); (x) to Agent and/or Lenders, any and all other Obligations due and payable as of such Payment Date; (xi) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 90% of any Available Amount representing principal collections less amounts paid under clause (ix) above; (xii) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 10% of any remaining Available Amount, but only so long as payment under this item would not result in Borrower’s inability to make sufficient distributions or dividends necessary to maintain its eligibility to qualify as a RIC or to avoid the imposition of a federal excise tax on undistributed earnings under Section 4982 of the Code; (xiii) to Investment Adviser, the Incentive Advisory Fees; (xiv) to Investment Adviser and Administrator, for any indemnities, costs, fees or expenses owed pursuant to the Advisory Agreement and the Administration Agreement, as applicable, to the extent not previously reimbursed or paid; and (xv) to Borrower, all remaining Available Amounts after giving effect to the payments described above in this Section 2.5, free and clear of the security interest created by this Agreement, to be used by Borrower any lawful purpose. In the event that amounts distributed under Sections 2.5(a) on any Payment Date are insufficient for payment of the amounts set forth in Section 2.5(a)(i) through (x) for such Payment Date, Borrower shall pay an amount equal to the extent of such insufficiency within three (3) Business Days of request by Agent. (b) Borrower absolutely and unconditionally promises to pay, when due and payable pursuant hereto, principal, interest and all other amounts and Obligations payable, hereunder or under any other Loan Document, without any right of rescission and without any deduction whatsoever, including any deduction for set-off, recoupment or counterclaim, notwithstanding any damage to, defects in or destruction of the Collateral or Underlying Collateral or any other event, including obsolescence of any property or improvements. Any payments made by Borrower, shall be made only by wire transfer on the date when due, without offset, deduction or counterclaim, in Dollars, in immediately available funds to such account as may be indicated in writing by Agent to Borrower from time to time. Any such payment received after 2:00 p.m. (New York City time) on any date shall be deemed received on the following Business Day. Whenever any payment hereunder shall be stated to be due or shall become due and payable on a day other than a Business Day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding Business Day, and such extension of time in such case shall be included in the computation of payment of any interest (at the applicable interest rate then in effect during such extension) and/or fees, as the case may be. Borrower hereby waives setoff, recoupment, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments and all notices and demands of any description, and the pleading of any statute of limitations as a defense to any demand under this Agreement and any other Loan Document.
Appears in 2 contracts
Samples: Loan and Security Agreement (Harvest Capital Credit Corp), Loan and Security Agreement (Harvest Capital Credit Corp)
Promise to Pay; Manner of Payment. (a) On each Payment Date Except as set forth in Section 9.2 hereof, Agent shall apply all Collections and on the first any other proceeds of Collateral whatsoever received by Agent and Lenders, within one (1st1) Business Day after Agent has transferred funds received under clause (ii) of the last sentence of Section 2.4(a) for distribution to the Collection Accountreceipt by Agent, prior to the occurrence and continuance of an Event of Default and subject to the other terms and conditions of this Agreement, all Available Amounts received during the month most recently ended shall be paid from the Collection Account by Agent to the following Persons Liquidation Period in the following order of priority, to the extent amounts are due and owing to such Persons:
(i) pro rata, to Agentthe Backup Servicer for unpaid Backup Servicer Fees (if any), and to the Custodian, for any indemnities, costs, fees or expenses owed to Agent to the extent not previously reimbursed or paidunpaid Custodian Fees (if any);
(ii) to Agent, for its benefit and the benefit of the Lenders on a pari-passu basisLenders, first, an amount equal to any protective advances made pursuant to Section 2.8 hereofProtective Advances, together with all interest owed with respect to such protective advances, Protective Advances and second, any indemnities, costs, fees or expenses indemnities owed to Lenders, third, all accrued and unpaid interest on the Obligations charged at the Default Rate and fourth, all other accrued and unpaid interest on the ObligationsAgent or any Lender, in each case, to the extent not previously reimbursed or paid;
(iii) Investment Adviserto Agent, for its benefit and the benefit of the Lenders, all accrued and unpaid Advisory Feesinterest, fees and expenses relating to the Obligations;
(iv) to Blocked Account BankAgent, for the benefit of Lenders, to pay any indemnities, costs, fees or expenses owed amounts due and owing pursuant to Section 2.5 hereof with all such amounts applied to the extent not previously reimbursed or unpaid principal balance of Tranche A until paid in relation full, then to the Blocked Account and/or any Loan Clearing Account;Tranche B; and
(v) so long as (A) no Revolving Credit Period Over-Advance exists on any such date during the Revolving Period or (B) the Amortization Period LTV Requirement has been satisfied and no Amortization Period Over-Advance exists on any such date following the termination of the Revolving Credit Period, any remaining amounts to Borrower or, upon Borrower’s written request, to Agent, for the benefit of Lenders, to pay the unpaid principal balance of Tranche A until paid in full, then to Tranche B. In the event that amounts distributed under this Section 2.4(a) are insufficient for payment of the amounts set forth in Sections 2.4(a)(i) through (iv) above, Borrower shall immediately pay an amount equal to the Lockbox extent of such insufficiency.
(b) Except as set forth in Section 9.2 hereof, Agent shall apply all Collections and any other proceeds of Collateral whatsoever received by Agent and Lenders, within one (1) Business Day of receipt by Agent, during the Liquidation Period in the following order of priority:
(i) pro rata, to the Backup Servicer for unpaid Backup Servicer Fees (if any), for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Lockbox Account;
(vi) and to the Custodian, for unpaid Custodian Fees (if any);
(ii) to Agent, for its benefit and the benefit of the Lenders, first, an amount equal to any indemnitiesProtective Advances, coststogether with all interest owed with respect to such Protective Advances and second, fees any indemnities owed to Agent or expenses owed the Custodian pursuant to (a) the Custody Agreement dated as of May 2any Lender, 2013 by and between Custodian and Harvestin each case, as amended from time to time, and (b) the Custodial Agreement to the extent not previously reimbursed or paid;
(viiiii) to (A) the Sub-AdministratorAgent, for any indemnitiesits benefit and the benefit of the Lenders, costsall accrued and unpaid interest, fees or and expenses owed the Sub-Administrator with respect relating to the Delegated Functions pursuant to the Sub-Administration Agreement to the extent not previously reimbursed or paid, and (B) the Backup Administrator, (if any) for any indemnities, costs, fees or expenses owed the Backup Administrator pursuant to the Backup Administration Agreement to the extent not previously reimbursed or paidObligations;
(viiiiv) to Agent, for the benefit of Lenders on a pari-passu basisLenders, an amount equal to pay the amount required (if any) to cause Borrower to be in compliance with Section 2.6 hereofunpaid principal balance of Tranche A;
(ixv) during the Amortization Period, to Agent, for the benefit of Lenders on a pari-passu basisLenders, any amounts due and owing pursuant to Section 2.7(b)pay the unpaid principal balance of Tranche B;
(xvi) to Agent and/or Lenders, any and all other Obligations due and payable as of such Payment Date;
(xi) during the Amortization Period, to Agent, for its benefit and the benefit of the Lenders on a pari-passu basis, 90% of any Available Amount representing principal collections less amounts paid under clause (ix) above;
(xii) during the Amortization PeriodLenders, to Agent, for the benefit of the Lenders on a pari-passu basis, 10% of pay any remaining Available Amount, but only so long other outstanding Obligations in such order as payment under this item would not result determined by Agent in Borrower’s inability to make sufficient distributions or dividends necessary to maintain its eligibility to qualify as a RIC or to avoid the imposition of a federal excise tax on undistributed earnings under Section 4982 of the Code;
(xiii) to Investment Adviser, the Incentive Advisory Fees;
(xiv) to Investment Adviser and Administrator, for any indemnities, costs, fees or expenses owed pursuant to the Advisory Agreement and the Administration Agreement, as applicable, to the extent not previously reimbursed or paidPermitted Discretion; and
(xvvii) to Borrower, all remaining Available Amounts after giving effect to the payments described above in this Section 2.5, free and clear of the security interest created by this AgreementAgent, to be used pay any Other Indebtedness (including, without limitation, the Inventory Loan Obligations) in such order as determined by Borrower any lawful purposeAgent in its Permitted Discretion. In the event that amounts distributed under Sections 2.5(athis Section 2.4(b) on any Payment Date are insufficient for payment of the amounts set forth in Section 2.5(a)(iSections 2.4(b)(i) through (xiv) for such Payment Dateabove or the amounts that may be required pursuant to Section 2.5 below, Borrower shall immediately pay an amount equal to the extent of such insufficiency within three (3) Business Days of request by Agentinsufficiency.
(bc) Borrower absolutely and unconditionally promises to pay, when due and payable pursuant hereto, principal, interest and all other amounts and payment Obligations payable, hereunder or under any other Loan Document, without any right of rescission and without any deduction whatsoever, including any deduction for set-off, recoupment or counterclaim, notwithstanding any damage to, defects in or destruction of the Collateral or Underlying Collateral or any other event, including obsolescence of any property or improvements. Any payments made by BorrowerExcept as expressly provided for herein, shall be made only by wire transfer on the date when due, without offset, deduction or counterclaim, in Dollars, in immediately available funds to such account as may be indicated in writing by Agent to Borrower from time to time. Any such payment received after 2:00 p.m. (New York City time) on any date shall be deemed received on the following Business Day. Whenever any payment hereunder shall be stated to be due or shall become due and payable on a day other than a Business Day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding Business Day, and such extension of time in such case shall be included in the computation of payment of any interest (at the applicable interest rate then in effect during such extension) and/or fees, as the case may be. Borrower hereby waives setoff, recoupment, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments and all notices and demands of any description, and the pleading of any statute of limitations as a defense to any demand under this Agreement and any other Loan Document.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement (Bluegreen Vacations Corp)
Promise to Pay; Manner of Payment. (a) On each Payment Date Except as set forth in Section 9.2 hereof, Agent shall apply all Collections and on the first any other proceeds of Collateral whatsoever received by Agent and Lenders, within one (1st1) Business Day after Agent has transferred funds received under clause (ii) of the last sentence of Section 2.4(a) for distribution to the Collection Accountreceipt by Agent, prior to the occurrence and continuance of an Event of Default and subject to the other terms and conditions of this Agreement, all Available Amounts received during the month most recently ended shall be paid from the Collection Account by Agent to the following Persons Liquidation Period in the following order of priority, to the extent amounts are due and owing to such Persons:
(i) pro rata, to Agentthe Backup Servicer for unpaid Backup Servicer Fees (if any), and to the Custodian, for any indemnities, costs, fees or expenses owed to Agent to the extent not previously reimbursed or paidunpaid Custodian Fees (if any);
(ii) to Agent, for its benefit and the benefit of the Lenders on a pari-passu basisLenders, first, an amount equal to any protective advances made pursuant to Section 2.8 hereofProtective Advances, together with all interest owed with respect to such protective advances, Protective Advances and second, any indemnities, costs, fees or expenses indemnities owed to Lenders, third, all accrued and unpaid interest on the Obligations charged at the Default Rate and fourth, all other accrued and unpaid interest on the ObligationsAgent or any Lender, in each case, to the extent not previously reimbursed or paid;
(iii) Investment Adviserto Agent, for its benefit and the benefit of the Lenders, all accrued and unpaid Advisory Feesinterest, fees and expenses relating to the Obligations;
(iv) to Blocked Account BankAgent, for the benefit of Lenders, to pay any indemnities, costs, fees or expenses owed amounts due and owing pursuant to the extent not previously reimbursed or paid in relation to the Blocked Account and/or any Loan Clearing Account;Section 2.5 hereof; and
(v) so long as (A) no Revolving Credit Period Over-Advance exists on any such date during the Revolving Period or (b) the Amortization Period LTV Requirement has been satisfied and no Amortization Period Over-Advance exists on any such date following the termination of the Revolving Credit Period, any remaining amounts to Borrower. In the event that amounts distributed under this Section 2.4(a) are insufficient for payment of the amounts set forth in Sections 2.4(a)(i) through (iv) above, Borrower shall immediately pay an amount equal to the Lockbox extent of such insufficiency.
(b) Except as set forth in Section 9.2 hereof, Agent shall apply all Collections and any other proceeds of Collateral whatsoever received by Agent and Lenders, within one (1) Business Day of receipt by Agent, during the Liquidation Period in the following order of priority:
(i) pro rata, to the Backup Servicer for unpaid Backup Servicer Fees (if any), for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Lockbox Account;
(vi) and to the Custodian, for unpaid Custodian Fees (if any);
(ii) to Agent, for its benefit and the benefit of the Lenders, first, an amount equal to any indemnitiesProtective Advances, coststogether with all interest owed with respect to such Protective Advances and second, fees any indemnities owed to Agent or expenses owed the Custodian pursuant to (a) the Custody Agreement dated as of May 2any Lender, 2013 by and between Custodian and Harvestin each case, as amended from time to time, and (b) the Custodial Agreement to the extent not previously reimbursed or paid;
(viiiii) to (A) the Sub-AdministratorAgent, for any indemnitiesits benefit and the benefit of the Lenders, costsall accrued and unpaid interest, fees or and expenses owed the Sub-Administrator with respect relating to the Delegated Functions pursuant to the Sub-Administration Agreement to the extent not previously reimbursed or paid, and (B) the Backup Administrator, (if any) for any indemnities, costs, fees or expenses owed the Backup Administrator pursuant to the Backup Administration Agreement to the extent not previously reimbursed or paidObligations;
(viiiiv) to Agent, for the benefit of Lenders on a pari-passu basisLenders, an amount equal to pay the amount required (if any) to cause Borrower to be in compliance with Section 2.6 hereof;unpaid principal balance of the Loan; and
(ixv) during the Amortization Period, to Agent, for its benefit and the benefit of Lenders on a pari-passu basis, any amounts due and owing pursuant to Section 2.7(b);
(x) to Agent and/or Lenders, to pay any and all other outstanding Obligations due and payable in such order as of such Payment Date;
(xi) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 90% of any Available Amount representing principal collections less amounts paid under clause (ix) above;
(xii) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 10% of any remaining Available Amount, but only so long as payment under this item would not result determined by Agent in Borrower’s inability to make sufficient distributions or dividends necessary to maintain its eligibility to qualify as a RIC or to avoid the imposition of a federal excise tax on undistributed earnings under Section 4982 of the Code;
(xiii) to Investment Adviser, the Incentive Advisory Fees;
(xiv) to Investment Adviser and Administrator, for any indemnities, costs, fees or expenses owed pursuant to the Advisory Agreement and the Administration Agreement, as applicable, to the extent not previously reimbursed or paid; and
(xv) to Borrower, all remaining Available Amounts after giving effect to the payments described above in this Section 2.5, free and clear of the security interest created by this Agreement, to be used by Borrower any lawful purposePermitted Discretion. In the event that amounts distributed under Sections 2.5(athis Section 2.4(b) on any Payment Date are insufficient for payment of the amounts set forth in Section 2.5(a)(iSections 2.4(b)(i) through (xiv) for such Payment Dateabove or the amounts that may be required pursuant to Section 2.5 below, Borrower shall immediately pay an amount equal to the extent of such insufficiency within three (3) Business Days of request by Agentinsufficiency.
(bc) Borrower absolutely and unconditionally promises to pay, when due and payable pursuant hereto, principal, interest and all other amounts and payment Obligations payable, hereunder or under any other Loan Document, without any right of rescission and without any deduction whatsoever, including any deduction for set-off, recoupment or counterclaim, notwithstanding any damage to, defects in or destruction of the Collateral or Underlying Collateral or any other event, including obsolescence of any property or improvements. Any payments made by BorrowerExcept as expressly provided for herein, shall be made only by wire transfer on the date when due, without offset, deduction or counterclaim, in Dollars, in immediately available funds to such account as may be indicated in writing by Agent to Borrower from time to time. Any such payment received after 2:00 p.m. (New York City time) on any date shall be deemed received on the following Business Day. Whenever any payment hereunder shall be stated to be due or shall become due and payable on a day other than a Business Day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding Business Day, and such extension of time in such case shall be included in the computation of payment of any interest (at the applicable interest rate then in effect during such extension) and/or fees, as the case may be. Borrower hereby waives setoff, recoupment, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments and all notices and demands of any description, and the pleading of any statute of limitations as a defense to any demand under this Agreement and any other Loan Document.
Appears in 1 contract
Promise to Pay; Manner of Payment. (a) On each Payment Date and on during the first (1st) Business Day after Agent has transferred funds received under clause (ii) of the last sentence of Section 2.4(a) for distribution to the Collection Account, prior to the occurrence and continuance of an Event of Default and subject to the other terms and conditions term of this Agreement, all Available Amounts received during the month most recently ended so long as no Event of Default is then continuing, payments shall be paid made by the Borrower from the Collection Account by Agent to the following Persons in the following order of priority, priority and to the extent amounts are due and owing to such Personsof the Available Amounts on deposit in the Collection Account:
(i) to AgentServicer, for any indemnities, costs, fees or expenses owed to Agent pay the Servicing Fee to the extent not previously reimbursed or paidaccrued and unpaid through the last day of the immediately preceding calendar month until such accrued Servicing Fees are paid in full;
(ii) to Backup Servicer, to pay the Backup Servicer Fee and any applicable expenses and indemnities payable to Backup Servicer under the Backup Servicing Agreement, including any such fees, expenses and indemnities accrued and unpaid through the last day of the immediately preceding calendar month until such accrued fees, expenses and indemnities are paid in full;
(iii) to the Collection Account Bank, to pay any fees required to be paid to Collection Account Bank with respect to the Collection Account, including any fees accrued and unpaid through the last day of the immediately preceding calendar month until such accrued fees are paid in full;
(iv) to Verification Agent, to pay the Verification Fee and any applicable expenses and indemnities payable to Verification Agent under the Backup Servicing Agreement, including any such fees, expenses and indemnities accrued and unpaid through the last day of the immediately preceding calendar month until such accrued fees, expenses and indemnities are paid in full;
(v) to Agent (for further payment to each Managing Agent, for itself and the benefit of the Lenders on a pari-passu basisother Secured Parties in its Lender Group), first, first an amount equal to the outstanding principal balance of any protective advances made pursuant to Section 2.8 hereofProtective Advances, together with all interest owed with respect to such protective advances, all Protective Advances and second, any indemnities, costs, fees or expenses indemnities owed to Lenders, third, all accrued and unpaid interest on the Obligations charged at the Default Rate and fourth, all Agent or any other accrued and unpaid interest on the ObligationsSecured Party in such Managing Agent’s Lender Group, in each case, to the extent not previously reimbursed or paid;
(iii) Investment Adviser, all accrued and unpaid Advisory Fees;
(iv) to Blocked Account Bank, for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Blocked Account and/or any Loan Clearing Account;
(v) to the Lockbox Agent (if any), for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Lockbox Account;
(vi) to the CustodianAgent (for further payment to each Managing Agent, for itself and the other Secured Parties in its Lender Group), any indemnitiesaccrued and unpaid interest, costs, fees or and expenses owed the Custodian pursuant to (a) the Custody Agreement dated as of May 2, 2013 by and between Custodian and Harvest, as amended from time to time, and (b) the Custodial Agreement relating to the extent not previously reimbursed Obligations, including any accrued and unpaid wire transfer fees or paidother banking fees;
(vii) to Agent (A) the Sub-Administratorfor further payment to each Managing Agent, for any indemnitiesitself and the other Secured Parties in its Lender Group), costs, fees or expenses owed the Sub-Administrator with respect to the Delegated Functions pursuant to the Sub-Administration Agreement to the extent not previously reimbursed or paid, and (B) the Backup Administrator, (if any) for any indemnities, costs, fees or expenses owed the Backup Administrator pursuant to the Backup Administration Agreement to the extent not previously reimbursed or paidRequired Principal Payment;
(viii) to Agent(x) at any time during the continuance of an Early Wind-Down Trigger Event, for the benefit of Lenders on a pari-passu basis, an amount equal to the amount required and (if anyy) to cause Borrower to be in compliance with Section 2.6 hereof;
(ix) at all times during the Amortization Period, in each instance, to Agent (for further payment to each Managing Agent, for itself and the benefit other Secured Parties in its Lender Group), to apply to the then outstanding principal amount of Lenders on a pari-passu basis, any amounts the Loan and other Obligations then due and owing pursuant to Section 2.7(b);
(x) to Agent and/or Lendersowing, any and until all other Obligations due and payable as of such Payment Date;
(xi) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 90% of any Available Amount representing principal collections less amounts are paid under clause (ix) above;
(xii) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 10% of any remaining Available Amount, but only so long as payment under this item would not result in Borrower’s inability to make sufficient distributions or dividends necessary to maintain its eligibility to qualify as a RIC or to avoid the imposition of a federal excise tax on undistributed earnings under Section 4982 of the Code;
(xiii) to Investment Adviser, the Incentive Advisory Fees;
(xiv) to Investment Adviser and Administrator, for any indemnities, costs, fees or expenses owed pursuant to the Advisory Agreement and the Administration Agreement, as applicable, to the extent not previously reimbursed or paidfull; and
(xvix) to Borrower, all or as Borrower may otherwise direct, any remaining Available Amounts after giving effect to the payments described above in this Section 2.5, free and clear of the security interest created by this Agreement, to be used by Borrower any lawful purpose. Amounts.
(b) In the event that amounts distributed under Sections 2.5(a2.4(a) on during any Payment Date calendar month are insufficient for payment of the amounts set forth in Section 2.5(a)(i) through (xSections 2.4(a)(i)-(vii) for such Payment Datecalendar month, Borrower may, but shall not be obligated to, pay an amount equal to the extent of such insufficiency within three (3i) Business Days through a Revolving Advance hereunder on such date of request determination to the extent there is Revolving Loan Availability on such date. Agent shall distribute any such payment received by it for the account of any Secured Party to the appropriate Managing Agent, for the benefit of the applicable Secured Party, in accordance with the terms hereof, including Section 2.4(a). Notwithstanding anything herein to the contrary and for the avoidance of doubt, Borrower shall be required to pay all amounts and Obligations when due and payable in accordance with Section 2.4(d).
(bc) Notwithstanding anything to the contrary contained in this Section 2.4, following the occurrence and during the continuance of an Event of Default, at the election of Agent, Agent shall have the immediate right to direct and to apply all funds in the Collection Account, the Collection Receipt Accounts, and any other Scheduled Payments, interest, principal, prepayments and other amounts received of every description payable to Borrower with respect to the Collateral, to the Obligations in such order and in such manner as Agent shall elect in its sole discretion.
(d) Borrower absolutely and unconditionally promises to pay, when due and payable pursuant hereto, principal, interest and all other amounts and Obligations payable, hereunder or under any other Loan Document, without any right of rescission and without any deduction whatsoever, including any deduction for set-off, recoupment or counterclaim, notwithstanding any damage to, defects in or destruction of the Collateral or Underlying Collateral or any other event, including obsolescence of any property or improvements. Any payments made by BorrowerExcept as expressly provided for herein, shall be made only by wire transfer on the date when due, without offset, deduction or counterclaim, in Dollars, in immediately available funds to such account as may be indicated in writing by Agent to Borrower from time to time. Any such payment received after 2:00 p.m. (New York City time) on any date shall be deemed received on the following Business Day. Whenever any payment hereunder shall be stated to be due or shall become due and payable on a day other than a Business Day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding Business Day, and such extension of time in such case shall be included in the computation of payment of any interest (at the applicable interest rate then in effect during such extension) and/or fees, as the case may be. Borrower hereby waives setoff, recoupment, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments and all notices and demands of any description, and the pleading of any statute of limitations as a defense to any demand under this Agreement and any other Loan Document, all to the extent permitted by law.
Appears in 1 contract
Samples: Loan and Security Agreement (Enova International, Inc.)
Promise to Pay; Manner of Payment. (a) On each Payment Date and on the first (1st) Business Day after Agent has transferred funds received under clause (iiiiB) of the last sentence of Section 2.4(a) for distribution to the Collection Account, prior to the occurrence and continuance of an Event of Default and subject to the other terms and conditions of this Agreement, all Available Amounts received during the month most recently ended shall be paid from the Collection Account by Agent to the following Persons in the following order of priority, to the extent amounts are due and owing to such Persons:
(i) to Agent, for any indemnities, costs, fees or expenses owed to Agent to the extent not previously reimbursed or paid;
(ii) to Agent, for the benefit of the Lenders on a pari-passu basis, first, an amount equal to any protective advances made pursuant to Section 2.8 hereof, together with all interest owed with respect to such protective advances, second, any indemnities, costs, fees or expenses owed to Lenders, third, all accrued and unpaid interest on the Obligations charged at the Default Rate and fourth, all other accrued and unpaid interest on the Obligations, in each case, to the extent not previously reimbursed or paid;
(iii) to Investment Adviser, all accrued and unpaid Advisory Fees;
(iv) to Blocked Account Bank, for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Blocked Account and/or any Loan Clearing Account;
(v) to the Lockbox Agent (if any), for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Lockbox Account;
(vi) to the Custodian, for any indemnities, costs, fees or expenses owed the Custodian pursuant to (a) the Custody Agreement dated as of May 2, 2013 by and between Custodian and Harvest, as amended from time to time, and (b) the Custodial Agreement to the extent not previously reimbursed or paid;
(vii) to (A) the Sub-Administrator, for any indemnities, costs, fees or expenses owed the Sub-Administrator with respect to the Delegated Functions pursuant to the Sub-Administration Agreement to the extent not previously reimbursed or paid, and (B) the Backup Administrator, (if any) for any indemnities, costs, fees or expenses owed the Backup Administrator pursuant to the Backup Administration Agreement to the extent not previously reimbursed or paid;
(viii) to Agent, for the benefit of Lenders on a pari-passu basis, an amount equal to the amount required (if any) to cause Borrower to be in compliance with Section 2.6 hereof;
(ix) during the Amortization Period, to Agent, for the benefit of Lenders on a pari-passu basis, any amounts amountsthe lesser of (A) all remaining Available Amounts after giving effect to the payments described above in this Section 2.5 or (B) the required monthly payment amount due and owing for such calendar month pursuant to Section 2.7(b), to be applied by Agent and the Lenders to pay down the principal balance of the Loan;
(x) to Agent and/or Lenders, any and all other Obligations due and payable as of such Payment Date;
(xi) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 90% of any Available Amount representing principal collections less amounts paid under clause (ix) above, to be applied by Agent and the Lenders to pay down the principal balance of the Loan;
(xii) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 10% of any remaining Available Amount, but only so long as payment under this item would not result in Borrower’s inability to make sufficient distributions or dividends necessary to maintain its eligibility to qualify as a RIC or to avoid the imposition of a federal excise tax on undistributed earnings under Section 4982 of the Code, to be applied by Agent and the Lenders to pay down the principal balance of the Loan;
(xiii) to Investment Adviser, the xxxxxx accrued and unpaid Incentive Advisory Fees;
(xiv) to Investment Adviser and Administrator, for any indemnities, costs, fees or expenses owed pursuant to the Advisory Agreement and the Administration Agreement, as applicable, to the extent not previously reimbursed or paid; and
(xv) to Borrower, all remaining Available Amounts after giving effect to the payments described above in this Section 2.5, free and clear of the security interest created by this Agreement, to be used by Borrower any lawful purpose. In the event that amounts distributed under Sections 2.5(a) on any Payment Date are insufficient for payment of the amounts set forth in (I) Section 2.5(a)(i) through (xxviii) for such Payment Date, Borrower shall pay an amount equal to the extent of such insufficiency within three (3) Business Days of request by AgentAgent and (II) Section 2.5(a)(ix) and (x) for such Payment Date, Borrower shall pay an amount equal to the extent of such insufficiency on or before the last Business Day of the calendar month in which such Payment Date occurs.
(b) Borrower absolutely and unconditionally promises to pay, when due and payable pursuant hereto, principal, interest and all other amounts and Obligations payable, hereunder or under any other Loan Document, without any right of rescission and without any deduction whatsoever, including any deduction for set-off, recoupment or counterclaim, notwithstanding any damage to, defects in or destruction of the Collateral or Underlying Collateral or any other event, including obsolescence of any property or improvements. Any payments made by Borrower, shall be made only by wire transfer on the date when due, without offset, deduction or counterclaim, in Dollars, in immediately available funds to such account as may be indicated in writing by Agent to Borrower from time to time. Any such payment received after 2:00 p.m. (New York City time) on any date shall be deemed received on the following Business Day. Whenever any payment hereunder shall be stated to be due or shall become due and payable on a day other than a Business Day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding Business Day, and such extension of time in such case shall be included in the computation of payment of any interest (at the applicable interest rate then in effect during such extension) and/or fees, as the case may be. Borrower hereby waives setoff, recoupment, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments and all notices and demands of any description, and the pleading of any statute of limitations as a defense to any demand under this Agreement and any other Loan Document.
Appears in 1 contract
Samples: Loan and Security Agreement (Harvest Capital Credit Corp)
Promise to Pay; Manner of Payment. (a) On each Payment Date and on the first (1st) Business Day after Agent has transferred funds received under clause (ii) of the last sentence of Section 2.4(a) for distribution to the Collection AccountDate, prior to the occurrence and continuance of an Event of Default and subject to the other terms and conditions of this Agreement, all Available Amounts received during the month most recently ended payments shall be paid made by the Agent from the Collection Collateral Account by Agent to the following Persons in the following order of priority, priority and to the extent amounts are due and owing to such Personsof the Available Amounts:
(i) to Agenton the first Payment Date of each calendar month, for any indemnities, costs, fees or expenses owed to Agent to the extent Servicer (so long as the Servicer has not previously reimbursed been replaced hereunder), the Servicing Fee for such calendar month until paid in full, including any such fees that remain unpaid with respect to one or paidmore prior Payment Dates;
(ii) on the first Payment Date of each calendar month, to the Backup Servicer, if any, the Backup Servicer Fee for such calendar month until paid in full, including any such fees that remain unpaid with respect to one or more prior Payment Dates;
(iii) on the first Payment Date of each calendar month, to the Verification Agent, the Verification Fee then due and owing for such calendar month until paid in full, including any such fees that remain unpaid with respect to one or more prior Payment Dates;
(iv) to Agent, for the benefit of the Lenders on a pari-passu basisLenders, first, an amount equal to any protective advances made pursuant to Section 2.8 hereofProtective Advances, together with all interest owed with respect to such protective advancesall Protective Advances, and second, any indemnitiesindemnities or expense reimbursements owed by Borrower, costsSeller, fees Servicer or expenses owed Indemnity Guarantor to Lenders, third, all accrued and unpaid interest on the Obligations charged at the Default Rate and fourth, all other accrued and unpaid interest on the ObligationsAgent or any Lender, in each case, to the extent not previously reimbursed or paid;
(iiiv) Investment Adviserto Agent, any accrued and unpaid costs, fees and expenses (including, but not limited to, the Administration Fee) relating to the Obligations owed to Agent as of such Payment Date;
(vi) on the first Payment Date of each calendar month, to Agent, for the benefit of Lenders, all accrued and unpaid Advisory Fees;
interest (ivincluding, without limitation, any Additional Interest) to Blocked Account Bank, for any indemnities, costs, fees or expenses owed relating to the extent not previously reimbursed or paid in relation to the Blocked Account and/or any Loan Clearing Account;
(v) to the Lockbox Agent (if any), for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Lockbox Account;
(vi) to the Custodian, for any indemnities, costs, fees or expenses owed the Custodian pursuant to (a) the Custody Agreement dated Obligations as of May 2, 2013 by and between Custodian and Harvest, as amended from time to time, and (b) the Custodial Agreement to the extent not previously reimbursed or paidsuch Payment Date;
(vii) to (A) the Sub-Administrator, for any indemnities, costs, fees or expenses owed the Sub-Administrator with respect to the Delegated Functions pursuant to the Sub-Administration Agreement to the extent not previously reimbursed or paid, and (B) the Backup Administrator, (if any) for any indemnities, costs, fees or expenses owed the Backup Administrator pursuant to the Backup Administration Agreement to the extent not previously reimbursed or paid;
(viii) to Agent, for the benefit of Lenders on a pari-passu basis, an amount equal to the amount required (if any) to cause Borrower to be in compliance with Section 2.6 hereof;
(ix) during the Amortization Period, to AgentLenders, for the benefit payment of Lenders on a pari-passu basis, any amounts due and owing required pursuant to Section 2.7(b2.6(c);
(xviii) to Agent and/or Lenders, any and all other Obligations due and payable as after the expiration of such Payment Date;
(xi) during the Amortization Revolving Credit Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 90% of any Available Amount representing principal collections less amounts paid under clause (ix) above;
(xii) during the Amortization Period, to AgentLenders, for the benefit of the Lenders on a pari-passu basis, 10% of any remaining Available Amount, but only so long as payment under this item would not result in Borrower’s inability to make sufficient distributions or dividends necessary to maintain its eligibility to qualify as a RIC or to avoid the imposition of a federal excise tax on undistributed earnings under Section 4982 of the Code;
(xiii) to Investment Adviser, the Incentive Advisory Fees;
(xiv) to Investment Adviser and Administrator, for any indemnities, costs, fees or expenses owed pursuant to the Advisory Agreement and the Administration Agreement, as applicable, to the extent not previously reimbursed or paidremaining Obligations (until none remain outstanding); and
(xvix) to the Borrower, all any remaining Available Amounts after giving effect to the payments described above in this Section 2.5Amounts, free and clear of the security interest created by this Agreement, to which may be used distributed by Borrower any lawful purpose. in accordance with Section 7.4 hereof.
(b) In the event that amounts distributed under Sections 2.5(aSection 2.4(a) on any as of the last Payment Date of each calendar month are insufficient for payment of the amounts set forth in Section 2.5(a)(i2.4(a)(iv), (v), (vi) through or (xvii) for all of the Payment Dates in such Payment Datecalendar month, Borrower shall pay an amount equal to the extent of such insufficiency (i) through a Revolving Advance hereunder on such date of determination, or (ii) if insufficient Availability or another failure of a condition precedent to an Advance then exists, from a wire transfer of immediately available funds by Borrower within three two (32) Business Days of request by Agent. Agent shall distribute any such payment received by it for the account of any Lender to the appropriate Lender in accordance with the terms hereof.
(bc) Notwithstanding anything to the contrary contained in this Section 2.4, following the occurrence and during the continuance of an Event of Default, Agent shall have the immediate right to direct and to apply all funds in the Collateral Account, and any other Scheduled Payments, prepayments and other amounts received of every description payable to Borrower with respect to the Collateral, to the Obligations in such order and in such manner as Agent shall elect in its sole discretion, provided, that so long as the Servicer shall not have been terminated in accordance with the Servicing Agreement, it shall be entitled to priority payment of amounts due to it in accordance with Section 2.4(a)(i).
(d) Borrower absolutely and unconditionally promises to pay, when due and payable pursuant hereto, principal, interest and all other amounts and Obligations payable, hereunder or under any other Loan Document, without any right of rescission and without any deduction whatsoever, including any deduction for set-off, recoupment or counterclaim, notwithstanding any damage to, defects in or destruction of the Collateral or Underlying Collateral or any other event, including obsolescence of any property or improvements. Any payments made by BorrowerExcept as expressly provided for herein, shall be made only by wire transfer on the date when due, without offset, deduction or counterclaim, in Dollars, in immediately available funds to such account as may be indicated in writing by Agent to Borrower from time to time. Any such payment received after 2:00 p.m. (New York City time) on any date shall be deemed received on the following Business Day. Whenever any payment hereunder shall be stated to be due or shall become due and payable on a day other than a Business Day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding Business Day, and such extension of time in such case shall be included in the computation of payment of any interest (at the applicable interest rate then in effect during such extension) and/or fees, as the case may be. Borrower hereby waives setoff, recoupment, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments and all notices and demands of any description, and the pleading of any statute of limitations as a defense to any demand under this Agreement and any other Loan Document, all to the extent permitted by law. Each Advance shall be due and payable in full, if not earlier in accordance with this Agreement, on the Maturity Date. All other amounts outstanding under the Loan and all other Obligations under the Loan shall be due and payable in full, if not earlier in accordance with this Agreement, on the Maturity Date.
Appears in 1 contract
Samples: Loan and Security Agreement (CURO Group Holdings Corp.)
Promise to Pay; Manner of Payment. (a) On each Payment Date and on the first (1st) Business Day after Agent has transferred funds received under clause (ii) of the last sentence of Section 2.4(a) for distribution to the Collection Account, prior to the occurrence and continuance of an Event of Default and subject to the other terms and conditions of this Agreement, all Available Amounts received during the month most recently ended shall be paid from the Collection Account by Agent to the following Persons in the following order of priority, to the extent amounts are due and owing to such Persons:
(i) to Agent, for any indemnities, costs, fees or expenses owed to Agent to the extent not previously reimbursed or paid;
(ii) to Agent, for the benefit of the Lenders on a pari-passu basis, first, an amount equal to any protective advances made pursuant to Section 2.8 hereof, together with all interest owed with respect to such protective advances, second, any indemnities, costs, fees or expenses owed to Lenders, third, all accrued and unpaid interest on the Obligations charged at the Default Rate and fourth, all other accrued and unpaid interest on the Obligations, in each case, to the extent not previously reimbursed or paid;
(iii) Investment Adviser, all accrued and unpaid Advisory Fees;
(iv) to Blocked Account Bank, for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Blocked Account and/or any Loan Clearing Account;
(v) to the Lockbox Agent (if any), for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Lockbox Account;
(vi) to the Custodian, for any indemnities, costs, fees or expenses owed the Custodian pursuant to (a) the Custody Agreement dated as of May 2, 2013 by and between Custodian and Harvest, as amended from time to time, and (b) the Custodial Agreement to the extent not previously reimbursed or paid;
(vii) to (A) the Sub-Administrator, for any indemnities, costs, fees or expenses owed the Sub-Administrator with respect to the Delegated Functions pursuant to the Sub-Administration Agreement to the extent not previously reimbursed or paid, and (B) the Backup Administrator, (if any) for any indemnities, costs, fees or expenses owed the Backup Administrator pursuant to the Backup Administration Agreement to the extent not previously reimbursed or paid;
(viii) to Agent, for the benefit of Lenders on a pari-passu basis, an amount equal to the amount required (if any) to cause Borrower to be in compliance with Section 2.6 hereof;
(ix) during the Amortization Period, to Agent, for the benefit of Lenders on a pari-passu basis, any amounts due and owing pursuant to Section 2.7(b);
(x) to Agent and/or Lenders, any and all other Obligations due and payable as of such Payment Date;
(xi) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 90% of any Available Amount representing principal collections less amounts paid under clause (ix) above;
(xii) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 10% of any remaining Available Amount, but only so long as payment under this item would not result in Borrower’s inability to make sufficient distributions or dividends necessary to maintain its eligibility to qualify as a RIC or to avoid the imposition of a federal excise tax on undistributed earnings under Section 4982 of the Code;
(xiii) to Investment Adviser, the Incentive Advisory Fees;
(xiv) to Investment Adviser and Administrator, for any indemnities, costs, fees or expenses owed pursuant to the Advisory Agreement and the Administration Agreement, as applicable, to the extent not previously reimbursed or paid; and
(xv) to Borrower, all remaining Available Amounts after giving effect to the payments described above in this Section 2.5, free and clear of the security interest created by this Agreement, to be used by Borrower any lawful purpose. In the event that amounts distributed under Sections 2.5(a) on any Payment Date are insufficient for payment of the amounts set forth in Section 2.5(a)(i) through (x) for such Payment Date, Borrower shall pay an amount equal to the extent of such insufficiency within three (3) Business Days of request by Agent.
(b) Borrower absolutely and unconditionally promises to pay, when due and payable pursuant hereto, principal, interest and all other amounts and Obligations payable, hereunder or under any other Loan Document, without any right of rescission and without any deduction whatsoever, including any deduction for set-off, recoupment or counterclaim, notwithstanding any damage to, defects in or destruction of the Collateral or Underlying Collateral or any other event, including obsolescence of any property or improvements. Any payments made by Borrower, shall be made only by wire transfer on the date when due, without offset, deduction or counterclaim, in Dollars, in immediately available funds to such account as may be indicated in writing by Agent to Borrower from time to time. Any such payment received after 2:00 p.m. (New York City time) on any date shall be deemed received on the following Business Day. Whenever any payment hereunder shall be stated to be due or shall become due and payable on a day other than a Business Day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding Business Day, and such extension of time in such case shall be included in the computation of payment of any interest (at the applicable interest rate then in effect during such extension) and/or fees, as the case may be. Borrower hereby waives setoff, recoupment, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments and all notices and demands of any description, and the pleading of any statute of limitations as a defense to any demand under this Agreement and any other Loan Document.
Appears in 1 contract
Samples: Loan and Security Agreement (Harvest Capital Credit Corp)
Promise to Pay; Manner of Payment. (a) On each Payment Date and on the first (1st) Business Day after Agent has transferred funds received under clause (ii) of the last sentence of Section 2.4(a) for distribution to the Collection Account, prior to the occurrence and continuance of an Event of Default and subject to the other terms and conditions of this Agreement, all Available Amounts received during the month most recently ended shall be paid from the Collection Account by Agent to the following Persons in the following order of priority, to the extent amounts are due and owing to such Persons:
(i) to Agent, for any indemnities, costs, fees or expenses owed to Agent to the extent not previously reimbursed or paid;
(ii) to Agent, for the benefit of the Lenders on a pari-passu basis, first, an amount equal to any protective advances made pursuant to Section 2.8 hereof, together with all interest owed with respect to such protective advances, second, any indemnities, costs, fees or expenses owed to Lenders, third, all accrued and unpaid interest on the Obligations charged at the Default Rate and fourth, all other accrued and unpaid interest on the Obligations, in each case, to the extent not previously reimbursed or paid;
(iii) Investment Adviser, all accrued and unpaid Advisory Fees;
(iv) to Blocked Account Bank, for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Blocked Account and/or any Loan Clearing Account;
(v) to the Lockbox Agent (if any), for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Lockbox Account;
(vi) to the Custodian, for any indemnities, costs, fees or expenses owed the Custodian pursuant to (a) the Custody Agreement dated as of May 2, 2013 by and between Custodian and HarvestBorrower, as amended from time to time, and (b) the Custodial Agreement to the extent not previously reimbursed or paid;
(vii) to (A) the Sub-Administrator, for any indemnities, costs, fees or expenses owed the Sub-Administrator with respect to the Delegated Functions pursuant to the Sub-Administration Agreement to the extent not previously reimbursed or paid, and (B) the Backup Administrator, (if any) for any indemnities, costs, fees or expenses owed the Backup Administrator pursuant to the Backup Administration Agreement to the extent not previously reimbursed or paid;
(viii) to Agent, for the benefit of Lenders on a pari-passu basis, an amount equal to the amount required (if any) to cause Borrower to be in compliance with Section 2.6 hereof;
(ix) during the Amortization Period, to Agent, for the benefit of Lenders on a pari-passu basis, any amounts due and owing pursuant to Section 2.7(b);
(x) to Agent and/or Lenders, any and all other Obligations due and payable as of such Payment Date;
(xi) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 90% of any Available Amount representing principal collections less amounts paid under clause (ix) above;
(xii) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 10% of any remaining Available Amount, but only so long as payment under this item would not result in Borrower’s inability to make sufficient distributions or dividends necessary to maintain its eligibility to qualify as a RIC or to avoid the imposition of a federal excise tax on undistributed earnings under Section 4982 of the Code;
(xiii) to Investment Adviser, the Incentive Advisory Fees;
(xiv) to Investment Adviser and Administrator, for any indemnities, costs, fees or expenses owed pursuant to the Advisory Agreement and the Administration Agreement, as applicable, to the extent not previously reimbursed or paid; and
(xv) to Borrower, all remaining Available Amounts after giving effect to the payments described above in this Section 2.5, free and clear of the security interest created by this Agreement, to be used by Borrower any lawful purpose. In the event that amounts distributed under Sections 2.5(a) on any Payment Date are insufficient for payment of the amounts set forth in Section 2.5(a)(i) through (x) for such Payment Date, Borrower shall pay an amount equal to the extent of such insufficiency within three (3) Business Days of request by Agent.
(b) Borrower absolutely and unconditionally promises to pay, when due and payable pursuant hereto, principal, interest and all other amounts and Obligations payable, hereunder or under any other Loan Document, without any right of rescission and without any deduction whatsoever, including any deduction for set-off, recoupment or counterclaim, notwithstanding any damage to, defects in or destruction of the Collateral or Underlying Collateral or any other event, including obsolescence of any property or improvements. Any payments made by Borrower, shall be made only by wire transfer on the date when due, without offset, deduction or counterclaim, in Dollars, in immediately available funds to such account as may be indicated in writing by Agent to Borrower from time to time. Any such payment received after 2:00 p.m. (New York City time) on any date shall be deemed received on the following Business Day. Whenever any payment hereunder shall be stated to be due or shall become due and payable on a day other than a Business Day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding Business Day, and such extension of time in such case shall be included in the computation of payment of any interest (at the applicable interest rate then in effect during such extension) and/or fees, as the case may be. Borrower hereby waives setoff, recoupment, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments and all notices and demands of any description, and the pleading of any statute of limitations as a defense to any demand under this Agreement and any other Loan Document.
Appears in 1 contract
Samples: Loan and Security Agreement (Harvest Capital Credit Corp)
Promise to Pay; Manner of Payment. (a) On each Payment Date and on the first (1st) Business Day after Agent has transferred funds received under clause (ii) of the last sentence of Section 2.4(a) for distribution to the Collection Account, prior to the occurrence and continuance of an Event of Default and subject to the other terms and conditions of this Agreement, all Available Amounts received during the month most recently ended shall be paid from the Collection Account by Agent to the following Persons in the following order of priority, to the extent amounts are due and owing to such Persons:
(i) to Agent, for any indemnities, costs, fees or expenses owed to Agent to the extent not previously reimbursed or paid;
(ii) to Agent, for the benefit of the Lenders on a pari-passu basis, first, an amount equal to any protective advances made pursuant to Section 2.8 hereof, together with all interest owed with respect to such protective advances, second, any indemnities, costs, fees or expenses owed to Lenders, third, all accrued and unpaid interest on the Obligations charged at the Default Rate and fourth, all other accrued and unpaid interest on the Obligations, in each case, to the extent not previously reimbursed or paid;
(iii) Investment Adviser, all accrued and unpaid Advisory Fees;
(iv) to Blocked Account Bank, for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Blocked Account and/or any Loan Clearing Account;
(v) to the Lockbox Agent (if any), for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Lockbox Account;
(vi) to the Custodian, for any indemnities, costs, fees or expenses owed the Custodian pursuant to (a) the Custody Agreement dated as of May 2, 2013 by and between Custodian and Harvest, as amended from time to time, and (b) the Custodial Agreement to the extent not previously reimbursed or paid;
(vii) to (A) the Sub-Administrator, for any indemnities, costs, fees or expenses owed the Sub-Administrator with respect to the Delegated Functions pursuant to the Sub-Administration Agreement to the extent not previously reimbursed or paid, and (B) the Backup Administrator, (if any) for any indemnities, costs, fees or expenses owed the Backup Administrator pursuant to the Backup Administration Agreement to the extent not previously reimbursed or paid;
(viii) to Agent, for the benefit of Lenders on a pari-passu basis, an amount equal to the amount required (if any) to cause Borrower to be in compliance with Section 2.6 hereof;
(ix) during the Amortization Period, to Agent, for the benefit of Lenders on a pari-passu basis, any amounts due and owing pursuant to Section 2.7(b);
(x) to Agent and/or Lenders, any and all other Obligations due and payable as of such Payment Date;
(xi) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 90% of any Available Amount representing principal collections less amounts paid under clause (ix) above;
(xii) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 10% of any remaining Available Amount, but only so long as payment under this item would not result in Borrower’s inability to make sufficient distributions or dividends necessary to maintain its eligibility to qualify as a RIC or to avoid the imposition of a federal excise tax on undistributed earnings under Section 4982 of the Code;
(xiii) to Investment Adviser, the Incentive Advisory Fees;
(xiv) to Investment Adviser and Administrator, for any indemnities, costs, fees or expenses owed pursuant to the Advisory Agreement and the Administration Agreement, as applicable, to the extent not previously reimbursed or paid; and
(xv) to Borrower, all remaining Available Amounts after giving effect to the payments described above in this Section 2.5, free and clear of the security interest created by this Agreement, to be used by Borrower any lawful purpose. In the event that amounts distributed under Sections 2.5(a) on any Payment Date are insufficient for payment of the amounts set forth in Section 2.5(a)(i) through (x) for such Payment Date, Borrower shall pay an amount equal to the extent of such insufficiency within three (3) Business Days of request by Agent.
(b) Borrower absolutely and unconditionally promises to pay, when due and payable pursuant hereto, pay principal, interest and all other amounts and Obligations payablepayable hereunder, hereunder or under any other Loan Document, without any right of rescission and without any deduction whatsoever, including any deduction for set-offany setoff, recoupment counterclaim or counterclaimrecoupments, and notwithstanding any damage to, defects in or destruction of the Collateral or Underlying Collateral or any other event, including obsolescence of any property or improvements. Any Unless paid in accordance with Section 2.5, all payments made by BorrowerBorrower (other than payments automatically paid through Advances under the Revolving Facility as provided herein), shall be made only by wire transfer on the date when due, without offset, offset or deduction or for counterclaim, in U.S. Dollars, in immediately available funds to such account as may be indicated in writing by Agent Lender to Borrower from time to time. Any such payment received after 2:00 4:00 p.m. (New York City time) on any the date when due shall be deemed received on the following Business Day. Whenever any payment hereunder shall be stated to be due or shall become due and payable on a day other than a Business Day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding Business Day, and such extension of time in such case shall be included in the computation of payment of any interest (at the applicable interest rate then in effect during such extension) and/or fees, as the case may be. Borrower In the absence of receipt by Lender of a written designation by Borrower, at least two (2) Business Days prior to such prepayment, that such prepayment is to be applied to the Term Loan, Borrowers hereby waives setoffauthorize and direct Lender, recoupmentsubject to the provisions of Section 9.4 hereof, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments and all notices and demands of any descriptionapply such prepayment against then outstanding Revolving Loans, and second, if no Revolving Loans are then outstanding, against the pleading outstanding Term Loan in accordance with the provisions of Section 2.1(b)(iii); provided, however, that if Lender at any statute time determines that payments received by Lender were in respect of limitations as a defense mandatory prepayment event, Lender shall apply such payments in accordance with the provisions of Section 2.1(b)(ii) and shall be fully authorized by Borrowers to any demand under this Agreement and any other make corresponding Loan DocumentAccount reversals in respect thereof.
Appears in 1 contract
Promise to Pay; Manner of Payment. (a) On each Payment Date and on the first (1st) Business Day after Agent has transferred funds received under clause (ii) of the last sentence of Section 2.4(a) for distribution to the Collection Account, prior to the occurrence and continuance of an so long as no Event of Default and subject to the other terms and conditions of this Agreementis then continuing, all Available Amounts received during the month most recently ended payments shall be paid made by Paying Agent, solely based on the information provided by the Servicer or Issuer in the Monthly Collateral and Servicing Report, from the Collection Collateral Account by Agent to the following Persons in the following order of priority, priority and to the extent amounts are due and owing to such Personsof all Available Amounts on deposit in the Collateral Account:
(i) to the Collateral Agent and Paying Agent, for the Collateral Agent Fee and any indemnitiesexpenses and indemnities payable to the Collateral Agent and the Paying Agent, costsrespectively, fees or expenses owed to Agent to the extent accrued and unpaid through the last day of the Due Period until such accrued fees, expenses and indemnities are paid in full; provided, that any such expenses and indemnities shall not previously reimbursed or paidexceed an aggregate of $150,000 per annum;
(ii) to the Servicer, the Servicing Fee, to the extent accrued and unpaid through the last day of the Due Period until such accrued fees are paid in full;
(iii) to the Backup Servicer, the Backup Servicing Fee and any applicable expenses and indemnities payable to the Backup Servicer under the Backup Servicing Agreement, to the extent accrued and unpaid through the last day of the Due Period until such accrued fees are paid in full; provided, that any such expenses and indemnities shall not exceed $100,000 per annum; ;
(iv) to the payment of any fees required to be paid with respect to the Collateral Account, to the extent accrued and unpaid through the last day of the Due Period until such accrued fees are paid in full;
(v) to Administrative Agent, for the benefit of the Lenders on a pari-passu basis, firstNote Purchasers, an amount equal to the outstanding balance of any protective advances made pursuant to Section 2.8 hereofProtective Advances, together with all interest owed with respect to such protective advances, second, any indemnities, costs, fees or expenses owed to Lenders, third, all accrued and unpaid interest on the Obligations charged at the Default Rate and fourth, all other accrued and unpaid interest on the Obligations, in each case, to the extent not previously reimbursed or paid;
(iii) Investment Adviser, all accrued and unpaid Advisory Fees;
(iv) to Blocked Account Bank, for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Blocked Account and/or any Loan Clearing Account;
(v) to the Lockbox Agent (if any), for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Lockbox AccountProtective Advances;
(vi) to the CustodianAdministrative Agent, for any indemnitiesaccrued and unpaid interest, costs, fees or and expenses owed the Custodian pursuant to (a) the Custody Agreement dated as of May 2, 2013 by and between Custodian and Harvest, as amended from time to time, and (b) the Custodial Agreement relating to the extent not previously reimbursed Obligations, including any accrued and unpaid wire transfer fees or paidother banking fees;
(vii) to (A) the Sub-Administrator, for any indemnities, costs, fees or expenses owed the Sub-Administrator with respect to the Delegated Functions pursuant to the Sub-Administration Agreement to the extent not previously reimbursed or paid, and (B) the Backup Administrator, (if any) for any indemnities, costs, fees or expenses owed the Backup Administrator pursuant to the Backup Administration Agreement to the extent not previously reimbursed or paid;
(viii) to Administrative Agent, for the benefit of Lenders on a pari-passu basisNote Purchasers, an amount equal to the amount required (if any) to cause Borrower to be in compliance with Section 2.6 hereofany Required Principal Payment;
(ixviii) during the Amortization Period, Period to Administrative Agent, for the benefit of Lenders on a pari-passu basisNote Purchasers, to apply to the then outstanding Obligations;
(ix) to the Backup Servicer, Paying Agent and Collateral Agent, any amounts due expenses and owing indemnities payable to the Backup Servicer under the Backup Servicing Agreement and to the Paying Agent and Collateral Agent under this Agreement, to the extent not paid pursuant to Section 2.7(b)clause (ii) above;
(x) to Agent and/or LendersIssuer, any and all other Obligations due and payable or as of such Payment Date;
(xi) during the Amortization PeriodIssuer may otherwise direct, to Agent, for the benefit of the Lenders on a pari-passu basis, 90% of any Available Amount representing principal collections less amounts paid under clause (ix) above;
(xii) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 10% of any remaining Available Amount, but only so long as Amounts. Administrative Agent shall distribute any such payment under this item would not result in Borrower’s inability to make sufficient distributions or dividends necessary to maintain its eligibility to qualify as a RIC or to avoid received by it for the imposition account of a federal excise tax on undistributed earnings under Section 4982 of the Code;
(xiii) to Investment Adviser, the Incentive Advisory Fees;
(xiv) to Investment Adviser and Administrator, for any indemnities, costs, fees or expenses owed pursuant Note Purchaser to the Advisory Agreement and appropriate Note Purchaser in accordance with the Administration Agreementterms hereof, as applicable, to the extent not previously reimbursed or paid; and
(xv) to Borrower, all remaining Available Amounts after giving effect to the payments described above in this including Section 2.5, free and clear of the security interest created by this Agreement, to be used by Borrower any lawful purpose. In the event that amounts distributed under Sections 2.5(a) on any Payment Date are insufficient for payment of the amounts set forth in Section 2.5(a)(i) through (x) for such Payment Date, Borrower shall pay an amount equal to the extent of such insufficiency within three (3) Business Days of request by Agent2.4(a).
(b) Borrower Notwithstanding anything to the contrary contained in this Section 2.4, following the occurrence and during the continuance of an Event of Default, Administrative Agent shall have the immediate right to direct and to apply all funds in the Collateral Account, the Collection Receipt Accounts (subject to the Intercreditor Agreement), the ACH Sweep Account and any other Scheduled Payments, interest, principal, prepayments and other amounts received of every description payable to Issuer with respect to the Collateral, to the Obligations in such order and in such manner as Administrative Agent shall elect in its sole discretion after application of funds pursuant to Section 2.4(a) without regard to any caps.
(c) Issuer absolutely and unconditionally promises to pay, when due and payable pursuant hereto, principal, interest and all other amounts and Obligations payable, hereunder or under any other Loan Transaction Document, including the amounts required to be paid pursuant to Section 2.4(a) on each Payment Date, without any right of rescission and without any deduction whatsoever, including any deduction for set-off, recoupment or counterclaim, notwithstanding any damage to, defects in or destruction of the Collateral or Underlying Collateral or any other event, including obsolescence of any property or improvements. Any payments made by BorrowerExcept as expressly provided for herein, shall be made only by wire transfer on the date when due, without offset, deduction or counterclaim, in Dollars, in immediately available funds to such account as may be indicated in writing by Agent to Borrower from time to time. Any such payment received after 2:00 p.m. (New York City time) on any date shall be deemed received on the following Business Day. Whenever any payment hereunder shall be stated to be due or shall become due and payable on a day other than a Business Day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding Business Day, and such extension of time in such case shall be included in the computation of payment of any interest (at the applicable interest rate then in effect during such extension) and/or fees, as the case may be. Borrower Issuer hereby waives setoff, recoupment, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments and all notices and demands of any description, and the pleading of any statute of limitations as a defense to any demand under this Agreement and any other Loan Transaction Document, all to the extent permitted by law.
Appears in 1 contract
Samples: Note Issuance and Purchase Agreement (Enova International, Inc.)
Promise to Pay; Manner of Payment. (a) On each Payment Date and on the first (1st) Business Day after Agent has transferred funds received under clause (ii) of the last sentence of Section 2.4(a) for distribution to the Collection Account, prior to the occurrence and continuance of an so long as no Event of Default and subject to the other terms and conditions of this Agreementis then continuing, all Available Amounts received during the month most recently ended payments shall be paid made by Paying Agent, solely based on the information provided by the Servicer or Issuer in the Monthly Collateral and Servicing Report, from the Collection Collateral Account by Agent to the following Persons in the following order of priority, priority and to the extent amounts are due and owing to such Personsof all Available Amounts on deposit in the Collateral Account:
(i) to the Collateral Trustee and Paying Agent, for the Collateral Trustee Fee and any indemnitiesexpenses and indemnities payable to the Collateral Trustee and the Paying Agent, costsrespectively, fees or expenses owed to Agent to the extent accrued and unpaid through the last day of the Due Period until such accrued fees, expenses and indemnities are paid in full; provided, that any such expenses and indemnities shall not previously reimbursed or paidexceed an aggregate of $150,000 per annum;
(ii) to the Servicer, the Servicing Fee, to the extent accrued and unpaid through the last day of the Due Period until such accrued fees are paid in full;
(iii) to the Backup Servicer, the Backup Servicing Fee and any applicable expenses and indemnities payable to the Backup Servicer under the Backup Servicing Agreement, to the extent accrued and unpaid through the last day of the Due Period until such accrued fees are paid in full; provided, that any such expenses and indemnities shall not exceed $100,000 per annum;
(iv) to the payment of any fees required to be paid with respect to the Collateral Account, to the extent accrued and unpaid through the last day of the Due Period until such accrued fees are paid in full;
(v) to Administrative Agent, for the benefit of the Lenders on a pari-passu basis, firstNote Purchasers, an amount equal to the outstanding balance of any protective advances made pursuant to Section 2.8 hereofProtective Advances, together with all interest owed with respect to such protective advances, second, any indemnities, costs, fees or expenses owed to Lenders, third, all accrued and unpaid interest on the Obligations charged at the Default Rate and fourth, all other accrued and unpaid interest on the Obligations, in each case, to the extent not previously reimbursed or paid;
(iii) Investment Adviser, all accrued and unpaid Advisory Fees;
(iv) to Blocked Account Bank, for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Blocked Account and/or any Loan Clearing Account;
(v) to the Lockbox Agent (if any), for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Lockbox AccountProtective Advances;
(vi) to the CustodianAdministrative Agent, for any indemnitiesaccrued and unpaid interest, costs, fees or and expenses owed the Custodian pursuant to (a) the Custody Agreement dated as of May 2, 2013 by and between Custodian and Harvest, as amended from time to time, and (b) the Custodial Agreement relating to the extent not previously reimbursed Obligations, including any accrued and unpaid wire transfer fees or paidother banking fees;
(vii) to (A) the Sub-Administrator, for any indemnities, costs, fees or expenses owed the Sub-Administrator with respect to the Delegated Functions pursuant to the Sub-Administration Agreement to the extent not previously reimbursed or paid, and (B) the Backup Administrator, (if any) for any indemnities, costs, fees or expenses owed the Backup Administrator pursuant to the Backup Administration Agreement to the extent not previously reimbursed or paid;
(viii) to Administrative Agent, for the benefit of Lenders on a pari-passu basisNote Purchasers, an amount equal to the amount required (if any) to cause Borrower to be in compliance with Section 2.6 hereofany Required Principal Payment;
(ixviii) during the Amortization Period, Period to Administrative Agent, for the benefit of Lenders on a pari-passu basisNote Purchasers, to apply to the then outstanding Obligations;
(ix) to the Backup Servicer, Paying Agent and Collateral Trustee, any amounts due expenses and owing indemnities payable to the Backup Servicer under the Backup Servicing Agreement and to the Paying Agent and Collateral Trustee under this Agreement, to the extent not paid pursuant to Section 2.7(b)clause (i) above;
(x) to Agent and/or LendersIssuer, any and all other Obligations due and payable or as of such Payment Date;
(xi) during the Amortization PeriodIssuer may otherwise direct, to Agent, for the benefit of the Lenders on a pari-passu basis, 90% of any Available Amount representing principal collections less amounts paid under clause (ix) above;
(xii) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 10% of any remaining Available Amount, but only so long as Amounts. Administrative Agent shall distribute any such payment under this item would not result in Borrower’s inability to make sufficient distributions or dividends necessary to maintain its eligibility to qualify as a RIC or to avoid received by it for the imposition account of a federal excise tax on undistributed earnings under Section 4982 of the Code;
(xiii) to Investment Adviser, the Incentive Advisory Fees;
(xiv) to Investment Adviser and Administrator, for any indemnities, costs, fees or expenses owed pursuant Note Purchaser to the Advisory Agreement and appropriate Note Purchaser in accordance with the Administration Agreementterms hereof, as applicable, to the extent not previously reimbursed or paid; and
(xv) to Borrower, all remaining Available Amounts after giving effect to the payments described above in this including Section 2.5, free and clear of the security interest created by this Agreement, to be used by Borrower any lawful purpose. In the event that amounts distributed under Sections 2.5(a) on any Payment Date are insufficient for payment of the amounts set forth in Section 2.5(a)(i) through (x) for such Payment Date, Borrower shall pay an amount equal to the extent of such insufficiency within three (3) Business Days of request by Agent2.4(a).
(b) Borrower Notwithstanding anything to the contrary contained in this Section 2.4, following the occurrence and during the continuance of an Event of Default, Administrative Agent shall have the immediate right to direct and to apply all funds in the Collateral Account, the Collection Receipt Accounts (subject to the Intercreditor Agreement), the ACH Sweep Account and any other Scheduled Payments, fees, principal, prepayments and other amounts received of every description payable to Issuer with respect to the Collateral, to the Obligations in such order and in such manner as Administrative Agent shall elect in its sole discretion after application of funds pursuant to Section 2.4(a) without regard to any caps.
(c) Issuer absolutely and unconditionally promises to pay, when due and payable pursuant hereto, principal, interest and all other amounts and Obligations payable, hereunder or under any other Loan Transaction Document, including the amounts required to be paid pursuant to Section 2.4(a) on each Payment Date, without any right of rescission and without any deduction whatsoever, including any deduction for set-off, recoupment or counterclaim, notwithstanding any damage to, defects in or destruction of the Collateral or Underlying Collateral or any other event, including obsolescence of any property or improvements. Any payments made by BorrowerExcept as expressly provided for herein, shall be made only by wire transfer on the date when due, without offset, deduction or counterclaim, in Dollars, in immediately available funds to such account as may be indicated in writing by Agent to Borrower from time to time. Any such payment received after 2:00 p.m. (New York City time) on any date shall be deemed received on the following Business Day. Whenever any payment hereunder shall be stated to be due or shall become due and payable on a day other than a Business Day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding Business Day, and such extension of time in such case shall be included in the computation of payment of any interest (at the applicable interest rate then in effect during such extension) and/or fees, as the case may be. Borrower Issuer hereby waives setoff, recoupment, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments and all notices and demands of any description, and the pleading of any statute of limitations as a defense to any demand under this Agreement and any other Loan Transaction Document, all to the extent permitted by law.
Appears in 1 contract
Samples: Note Issuance and Purchase Agreement (Enova International, Inc.)
Promise to Pay; Manner of Payment. (a) On each Payment Date and on the first (1st) Business Day after Agent has transferred funds received under clause (ii) of the last sentence of Section 2.4(a) for distribution to the Collection Account, prior to the occurrence and continuance of an so long as no Event of Default and subject to the other terms and conditions of this Agreementis then continuing, all Available Amounts received during the month most recently ended payments shall be paid made by Agent from the Collection Collateral Account by Agent to the following Persons in the following order of priority, priority and to the extent amounts are due and owing to such Personsof all Available Amounts on deposit in the Collateral Account:
(i) pro rata to Agentthe Servicer and Backup Servicer, for any indemnitiesthe Servicing Fee and the Backup Servicing Fee, costsrespectively, fees or expenses owed to Agent each to the extent not previously reimbursed or paidaccrued and unpaid through the last day of the Due Period until such accrued fees are paid in full;
(ii) to the payment of any fees required to be paid with respect to the Collateral Account, to the extent accrued and unpaid through the last day of the Due Period until such accrued fees are paid in full;
(iii) to Agent, for the benefit of the Lenders on a pari-passu basisLenders, first, first an amount equal to the outstanding principal balance of any protective advances made pursuant to Section 2.8 hereofProtective Advances, together with all interest owed with respect to such protective advances, all Protective Advances and second, any indemnities, costs, fees or expenses indemnities owed to Lenders, third, all accrued and unpaid interest on the Obligations charged at the Default Rate and fourth, all other accrued and unpaid interest on the ObligationsAgent or any Lender, in each case, to the extent not previously reimbursed or paid;
(iiiiv) Investment Adviserto Agent, all any accrued and unpaid Advisory Fees;
(iv) to Blocked Account Bank, for any indemnitiesinterest, costs, fees or and expenses owed relating to the extent not previously reimbursed Obligations, including any accrued and unpaid wire transfer fees or paid in relation to the Blocked Account and/or any Loan Clearing Accountother banking fees;
(v) to the Lockbox Agent (if any), for any indemnities, costs, fees or expenses owed to the extent not previously reimbursed or paid in relation to the Lockbox Account;
(vi) to the Custodian, for any indemnities, costs, fees or expenses owed the Custodian pursuant to (a) the Custody Agreement dated as of May 2, 2013 by and between Custodian and Harvest, as amended from time to time, and (b) the Custodial Agreement to the extent not previously reimbursed or paid;
(vii) to (A) the Sub-Administrator, for any indemnities, costs, fees or expenses owed the Sub-Administrator with respect to the Delegated Functions pursuant to the Sub-Administration Agreement to the extent not previously reimbursed or paid, and (B) the Backup Administrator, (if any) for any indemnities, costs, fees or expenses owed the Backup Administrator pursuant to the Backup Administration Agreement to the extent not previously reimbursed or paid;
(viii) to Agent, for the benefit of Lenders on a pari-passu basisLenders, an amount equal to the amount required (if any) to cause Borrower to be in compliance with Section 2.6 hereofany Required Principal Payment;
(ixvi) (x) at any time after the occurrence and continuance of a Trigger Event, and (y) during the Amortization Period, after the date upon which the then outstanding principal amount of the Loan is equal to or less than ten percent (10%) of the then applicable Maximum Loan Amount, in each instance, to Agent, for the benefit of Lenders on a pari-passu basis, any amounts due and owing pursuant to Section 2.7(b);
(x) to Agent and/or Lenders, any and all other Obligations due and payable as of such Payment Date;
(xi) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 90% of any Available Amount representing principal collections less amounts paid under clause (ix) above;
(xii) during the Amortization Period, to Agent, for the benefit of the Lenders on a pari-passu basis, 10% of any remaining Available Amount, but only so long as payment under this item would not result in Borrower’s inability to make sufficient distributions or dividends necessary to maintain its eligibility to qualify as a RIC or to avoid the imposition of a federal excise tax on undistributed earnings under Section 4982 of the Code;
(xiii) to Investment Adviser, the Incentive Advisory Fees;
(xiv) to Investment Adviser and Administrator, for any indemnities, costs, fees or expenses owed pursuant apply to the Advisory Agreement and the Administration Agreement, as applicable, to the extent not previously reimbursed or paidthen outstanding Obligations; and
(xvvii) to Borrower, all any remaining Available Amounts after giving effect to the payments described above in this Section 2.5, free and clear of the security interest created by this Agreement, to be used by Borrower any lawful purposeAmounts. In the event that amounts distributed under Sections 2.5(a2.4(a) on during any Payment Date calendar month are insufficient for payment of the amounts set forth in Section 2.5(a)(i) through (xSections 2.4(a)(i)-(v) for such Payment Datecalendar month, Borrower may, but shall not be obligated to, pay an amount equal to the extent of such insufficiency within three (3) Business Days through a Revolving Advance hereunder on such date of request determination. Notwithstanding anything herein to the contrary and for the avoidance of doubt, Borrower shall be required to pay all amounts and Obligations when due and payable in accordance with Section 2.4(c). Agent shall distribute any such payment received by Agentit for the account of any Lender to the appropriate Lender in accordance with the terms hereof, including Section 2.4(a).
(b) Notwithstanding anything to the contrary contained in this Section 2.4, following the occurrence and during the continuance of an Event of Default, Agent shall have the immediate right to direct and to apply all funds in the Collateral Account, the Collection Receipt Accounts (subject to the Intercreditor Agreement), the ACH Sweep Account and any other Scheduled Payments, interest, principal, prepayments and other amounts received of every description payable to Borrower with respect to the Collateral, to the Obligations in such order and in such manner as Agent shall elect in its sole discretion.
(c) Borrower absolutely and unconditionally promises to pay, when due and payable pursuant hereto, principal, interest and all other amounts and Obligations payable, hereunder or under any other Loan Document, including the amounts required to be paid pursuant to Section 2.4(a) on each Payment Date, without any right of rescission and without any deduction whatsoever, including any deduction for set-off, recoupment or counterclaim, notwithstanding any damage to, defects in or destruction of the Collateral or Underlying Collateral or any other event, including obsolescence of any property or improvements. Any payments made by BorrowerExcept as expressly provided for herein, shall be made only by wire transfer on the date when due, without offset, deduction or counterclaim, in Dollars, in immediately available funds to such account as may be indicated in writing by Agent to Borrower from time to time. Any such payment received after 2:00 p.m. (New York City time) on any date shall be deemed received on the following Business Day. Whenever any payment hereunder shall be stated to be due or shall become due and payable on a day other than a Business Day, the due date thereof shall be extended to, and such payment shall be made on, the next succeeding Business Day, and such extension of time in such case shall be included in the computation of payment of any interest (at the applicable interest rate then in effect during such extension) and/or fees, as the case may be. Borrower hereby waives setoff, recoupment, counterclaim, demand, presentment, protest, all defenses with respect to any and all instruments and all notices and demands of any description, and the pleading of any statute of limitations as a defense to any demand under this Agreement and any other Loan Document, all to the extent permitted by law.
Appears in 1 contract
Samples: Loan and Security Agreement (Enova International, Inc.)
