Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:00 p.m., Chicago time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent or the Canadian Funding Bank, as applicable, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, except payments to be made directly to the Issuing Bank (including payments under any Existing Letters of Credit), Swingline Lender, Canadian Swingline Lender or the Canadian Funding Bank as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars (except that payments made under the Canadian Subfacility shall be made in Canadian dollars). At all times that full cash dominion is in effect pursuant to Section 7.3 of the Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection. (b) Any proceeds of Collateral received by the Administrative Agent or the Canadian Funding Bank, as applicable, (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers) or (B) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b)) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders so direct, such funds shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent and the Issuing Bank (including with respect to the Existing Letters of Credit) from the Borrowers (other than in connection with Banking Services), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking Services), third, to pay interest due in respect of the Overadvances and Protective Advances, fourth, to pay the principal of the Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably, sixth, to repay principal on the Loans (other than the Overadvances and Protective Advances) and unreimbursed LC Disbursements ratably, seventh, to pay an amount to the Administrative Agent equal to one hundred three percent (103%) of the aggregate undrawn face amount of all outstanding Letters of Credit, to be held as cash collateral for such Obligations, eighth, to payment of any amounts owing with respect to Banking Services, ninth, to the payment of any other Secured Obligation due to the Administrative Agent or any Lender by the Borrowers, and tenth, payment to Issuing Bank for issuance of standby L/C in favor of the Administrative Agent in an amount to be determined by the Administrative Agent with respect to Section 212(13.2) of the Income Tax Act (Canada). Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrowers, or unless a Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan or CDOR Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or CDOR Loan or (b) in the event, and only to the extent, that there are no outstanding ABR Loans or Canadian Prime Rate Loans, as applicable, of the same Class and, in any event, the Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. (c) All payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrowers pursuant to Section 2.03 or a deemed request as provided in this Section or, if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, may be deducted from any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding Bank, as applicable. The Borrowers hereby irrevocably authorize (i) the Administrative Agent or the Canadian Funding Bank, as applicable, to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, Canadian Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, the Administrative Agent to charge any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding Bank, as applicable, for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents. (d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to any Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrowers consent to the foregoing and agree, to the extent they may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation. (e) Unless the Administrative Agent and the Canadian Funding Bank shall have received notice from the Borrowers prior to the close of business on the date on which any payment is due to the Administrative Agent or the Canadian Funding Bank for the account of the Lenders or the Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent and the Canadian Funding Bank may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent and the Canadian Funding Bank, as applicable, forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent and the Canadian Funding Bank, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (f) If any Lender shall fail to make any payment required to be made by it hereunder, then the Administrative Agent or the Canadian Funding Bank, as applicable, may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent or the Canadian Funding Bank, as applicable, for the account of such Lender to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:00 2:00 p.m., Chicago time, on the date when due, in immediately available funds, without set-set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, except (i) payments of principal, interest, fees or reimbursements of LC Disbursements relating to any Canadian Loan or Canadian Letter of Credit shall be made to the Canadian Administrative Agent at its offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Bank Plaza, Floor 18, Toronto M57 2J2 Canada, (ii) payments to be made directly to the an Issuing Bank (including payments under any Existing Letters of Credit), Swingline Lender, Canadian or Swingline Lender or the Canadian Funding Bank as expressly provided herein shall be made to such Issuing Bank or Swingline Lender, and except that (iii) payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 9.3 shall be made directly to the Persons entitled thereto. The Each of the Administrative Agent and the Canadian Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient recipient, in like funds, promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars (except that payments made under the Canadian Subfacility shall be made currency in Canadian which the applicable Obligations are denominated, and, if not otherwise specified, in dollars). At all times that full cash dominion is in effect pursuant to Section 7.3 of the Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection.
(b) Any proceeds of Collateral received by the Administrative Agent or the Canadian Funding Bank, as applicable, (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers) or (B) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b)) or (ii) Administrative Agent after an Event of Default has occurred and is continuing and the Administrative Agent or the Canadian Administrative Agent so elects elects, or the Required Lenders so direct, such funds shall be applied ratably (based in respect of each of the following separate categories, computed independently of the other categories, on each Lender Party’s interest in the aggregate specific type of outstanding Secured Obligations described within (and only within) each specific category of Secured Obligations listed respectively below) first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent Agent, the Canadian Administrative Agent, and the each Issuing Bank (including with respect to the Existing Letters of Credit) Banks from the Borrowers (other than in connection with Banking ServicesServices or Swap Obligations), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking Services), third, to pay interest due in respect of Swingline Loans, Overadvances and Protective Advances, third, to pay the principal of Swingline Loans, Overadvances and Protective Advances, fourth, to pay the principal of the Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Swingline Loans, Overadvances and Protective Advances) ratably), sixthfifth, to repay prepay principal on the Loans (other than the Swingline Loans, Overadvances and Protective Advances), to pay any outstanding amounts owing to Royal Bank of Canada with respect to Overdraft Accommodations (any such payments not to exceed the Overdraft Accommodation Maximum Amount) and to prepay unreimbursed LC Disbursements ratablyDisbursements, seventhsixth, to pay an amount to the Administrative Agent equal to one hundred three five percent (103105%) of the aggregate undrawn face U.S. LC Exposure, and to pay an amount to the Canadian Administrative Agent equal to one hundred five percent (105%) of all outstanding Letters of Creditthe Canadian LC Exposure, to be held as cash collateral for such Obligations, eighthseventh, to payment of pay any amounts owing to the Lenders and their Affiliates with respect to Banking ServicesServices (excluding Overdraft Accommodations) and Swap Obligations (up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22) and to pay any other fees or expense reimbursements then due to the Lenders from the Borrowers, ninthand eighth, to the payment of pay any other Secured Obligation due to the Administrative Agent, the Canadian Administrative Agent or any Lender (excluding Overdraft Accommodations) by the Borrowers, and tenth, payment to Issuing Bank for issuance of standby L/C in favor of the Administrative Agent in an amount to be determined by the Administrative Agent with respect to Section 212(13.2) of the Income Tax Act (Canada). Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the BorrowersBorrower Representative, or unless a Default is in existence, neither the Administrative Agent Agent, the Canadian Administrative Agent, nor any Lender shall apply any payment which it receives to any Eurodollar Loan or CDOR Rate Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or such CDOR Rate Loan or (b) in the event, and only to the extent, with respect to CDOR Rate Loans, that there are no outstanding ABR Loans or Canadian Prime Rate Loans of the same Class, and with respect to Eurodollar Loans, as applicable, that there are no outstanding CBFR Loans of the same Class and, in any such event, the Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent, the Canadian Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations.
(c) All At the election of the Administrative Agent or the Canadian Administrative Agent, as the case may be, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.039.3), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrowers Borrower Representative pursuant to Section 2.03 2.3 or a deemed request as provided in this Section or, if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, may be deducted from any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding Bank, as applicableAdministrative Agent. The Borrowers Each Borrower hereby irrevocably authorize authorizes (i) the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, to make a Borrowing for the purpose of paying each payment of principal, interest and interest, fees or expense reimbursements as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, Canadian Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and fees, expenses or expense reimbursements as described in Section 9.039.3) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.032.3, 2.04 2.4 or 2.052.5, as applicable and (ii) if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, the Administrative Agent or the Canadian Administrative Agent, as applicable, to charge any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, for each payment of principal, interest and interest, fees or expense reimbursements as it becomes due hereunder or any other amount due under the Loan Documents.
(d) If any Lender shall, by exercising any right of set-set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower the Loan Parties pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to any Borrower the Loan Parties or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrowers consent Each Loan Party consents to the foregoing and agreeagrees, to the extent they it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any Borrower such Loan Party rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower Loan Party in the amount of such participation.
(e) Unless the Administrative Agent and the Canadian Funding Bank shall have received notice from the Borrowers Borrower Representative prior to the close of business on the date on which any payment is due to the Administrative Agent or the Canadian Funding Bank Administrative Agent, as applicable, for the account of the Lenders or the an Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent and or the Canadian Funding Bank Administrative Agent, as applicable, may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankBanks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent and or the Canadian Funding BankAdministrative Agent, as applicable, forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent and or the Canadian Funding BankAdministrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent or the Canadian Administrative Agent, as applicable, in accordance with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made by it hereunder, then the Administrative Agent or and, if applicable, the Canadian Funding Bank, as applicableAdministrative Agent, may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, for the account of such Lender to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paidpaid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any such amounts to, any future funding obligations of such Lender hereunder; application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent or the Canadian Administrative Agent, as applicable, in its discretion.
Appears in 1 contract
Sources: Credit Agreement (Vitran Corp Inc)
Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:00 2:00 p.m., Chicago time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, except (i) payments of principal, interest, fees or reimbursements of LC Disbursements relating to any Canadian Loan or Canadian Letter of Credit shall be made to the Canadian Administrative Agent at its offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Bank Plaza, Floor 18, Toronto M57 2J2 Canada, (ii) payments to be made directly to the an Issuing Bank (including payments under any Existing Letters of Credit), Swingline Lender, Canadian or Swingline Lender or the Canadian Funding Bank as expressly provided herein shall be made to such Issuing Bank or Swingline Lender, and except that (iii) payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Each of the Administrative Agent and the Canadian Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient recipient, in like funds, promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars the currency in which the applicable Obligations are denominated (except that payments made under the Canadian Subfacility shall be made in Canadian dollars). At all times that full cash dominion is in effect pursuant to Section 7.3 of the Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collectionthe proviso set forth in the first sentence of Section 1.05), and, if not otherwise specified, in dollars.
(b) Any proceeds of Collateral received by the Administrative Agent or the Canadian Funding Bank, as applicable, (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers) or (B) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b)) or (ii) Administrative Agent after an Event of Default has occurred and is continuing and the Administrative Agent or the Canadian Administrative Agent so elects elects, or the Required Lenders so direct, such funds shall be applied ratably (based in respect of each of the following separate categories, computed independently of the other categories, on each Lender Party’s interest in the aggregate specific type of outstanding Secured Obligations described within (and only within) each specific category of Secured Obligations listed respectively below) first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent Agent, the Canadian Administrative Agent, and the each Issuing Bank (including with respect to the Existing Letters of Credit) from the Borrowers (other than in connection with Banking ServicesServices or Swap Obligations), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking ServicesServices or Swap Obligations), third, to pay interest due in respect of the Swingline Loans, Overadvances and Protective Advances, fourth, to pay the principal of the Swingline Loans, Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Swingline Loans, Overadvances and Protective Advances) ratably), sixth, to repay prepay principal on the Loans (other than the Swingline Loans, Overadvances and Protective Advances) and unreimbursed LC Disbursements ratablyDisbursements, seventh, to pay an amount to the Administrative Agent equal to one hundred three percent (103%) of the aggregate undrawn face U.S. LC Exposure, and to pay an amount to the Canadian Administrative Agent equal to one hundred three percent (103%) of all outstanding Letters of Creditthe Canadian LC Exposure, to be held as cash collateral for such Obligations, eighth, to payment of pay any amounts owing to the Lenders and their Affiliates with respect to Specified Foreign Credit Extensions up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, ninth, to pay any amounts owing to the Lenders and their Affiliates with respect to Banking ServicesServices up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, ninthSwap Obligations up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22 and Foreign Credit Extensions (other than Specified Foreign Credit Extensions), and tenth, to the payment of pay any other Secured Obligation due to the Administrative Agent, the Canadian Administrative Agent or any Lender by the Borrowers, and tenth, payment to Issuing Bank for issuance of standby L/C in favor of the Administrative Agent in an amount to be determined by the Administrative Agent with respect to Section 212(13.2) of the Income Tax Act (Canada). Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the BorrowersBorrower Representative, or unless a Default is in existence, neither the Administrative Agent Agent, the Canadian Administrative Agent, nor any Lender shall apply any payment which it receives to any Eurodollar Loan or CDOR Rate Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or such CDOR Rate Loan or (b) in the event, and only to the extent, with respect to CDOR Rate Loans, that there are no outstanding Canadian Prime Rate Loans of the same Class, and with respect to Eurodollar Loans, that there are no outstanding ABR Loans or Canadian Prime Rate Loans, as applicable, of the same Class and, in any such event, the Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent, the Canadian Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. Notwithstanding the foregoing but subject to Section 9.20, any such application of proceeds from Collateral securing solely the Canadian Obligations shall be made solely in respect of Canadian Obligations.
(c) All At the election of the Administrative Agent or the Canadian Administrative Agent, as the case may be, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrowers Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or, if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, may be deducted from any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding Bank, as applicableAdministrative Agent. The Borrowers Each Borrower hereby irrevocably authorize authorizes (i) the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, Canadian Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, the Administrative Agent or the Canadian Administrative Agent, as applicable, to charge any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower the Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to any Borrower the Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrowers consent Each Borrower consents to the foregoing and agreeagrees, to the extent they it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
(e) Unless the Administrative Agent and the Canadian Funding Bank shall have received notice from the Borrowers Borrower Representative prior to the close of business on the date on which any payment is due to the Administrative Agent or the Canadian Funding Bank Administrative Agent, as applicable, for the account of the Lenders or the an Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent and or the Canadian Funding Bank Administrative Agent, as applicable, may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankBanks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent and or the Canadian Funding BankAdministrative Agent, as applicable, forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent and or the Canadian Funding BankAdministrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent or the Canadian Administrative Agent, as applicable, in accordance with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made by it hereunder, then the Administrative Agent or and, if applicable, the Canadian Funding Bank, as applicableAdministrative Agent, may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, for the account of such Lender to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paidpaid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any such amounts to, any future funding obligations of such Lender hereunder; application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent or the Canadian Administrative Agent, as applicable, in its discretion.
(g) Notwithstanding the foregoing, unless requested otherwise by the Canadian Borrower (i) no Borrowings shall be made to the Canadian Borrower for the purpose of paying any U.S. Obligations; and (ii) deposit accounts of the Canadian Borrower may only be charged to pay Canadian Obligations.
Appears in 1 contract
Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:00 p.m.noon, Chicago California time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, except (i) payments of principal, interest, fees or reimbursements of LC Disbursements relating to any Canadian Loan or Canadian Letter of Credit shall be made to the Canadian Administrative Agent at its offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Bank Plaza, Floor 18, Toronto M57 2J2 Canada, (ii) payments to be made directly to the an Issuing Bank (including payments under any Existing Letters of Credit), Swingline Lender, Canadian or Swingline Lender or the Canadian Funding Bank as expressly provided herein shall be made to such Issuing Bank or Swingline Lender, and except that (iii) payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Each of the Administrative Agent and the Canadian Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient recipient, in like funds, promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars (except that payments made under the Canadian Subfacility shall be made currency in Canadian which the applicable Obligations are denominated, and, if not otherwise specified, in dollars). At all times that full cash dominion is in effect pursuant to Section 7.3 of the Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection.
(b) Any proceeds of Collateral received by the Administrative Agent or the Canadian Funding Bank, as applicable, (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers) or (B) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b)) or (ii) Administrative Agent after an Event of Default has occurred and is continuing and the Administrative Agent or the Canadian Administrative Agent so elects elects, or the Required Lenders so direct, such funds shall be applied ratably (based in respect of each of the following separate categories, computed independently of the other categories, on each Lender Party’s interest in the aggregate specific type of outstanding Secured Obligations described within (and only within) each specific category of Secured Obligations listed respectively below) first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent Agent, the Canadian Administrative Agent, and the each Issuing Bank (including with respect to the Existing Letters of Credit) Banks from the Borrowers (other than in connection with Banking ServicesServices or Swap Obligations), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking ServicesServices or Swap Obligations), third, to pay interest due in respect of the Overadvances and Protective Advances, fourth, to pay the principal of the Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably), sixth, to repay prepay principal on the Loans (other than the Overadvances and Protective Advances) and unreimbursed LC Disbursements ratablyDisbursements, seventh, to pay an amount to the Administrative Agent equal to one hundred three five percent (103105%) of the aggregate undrawn face U.S. LC Exposure, and to pay an amount to the Canadian Administrative Agent equal to one hundred five percent (105%) of all outstanding Letters of Creditthe Canadian LC Exposure, to be held as cash collateral for such Obligations, eighth, to payment of any amounts owing with respect to Banking ServicesServices and Swap Obligations, and ninth, to the payment of any other Secured Obligation due to the Administrative Agent, the Canadian Administrative Agent or any Lender by the Borrowers, and tenth, payment to Issuing Bank for issuance of standby L/C in favor of the Administrative Agent in an amount to be determined by the Administrative Agent with respect to Section 212(13.2) of the Income Tax Act (Canada). Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the BorrowersBorrower Representative, or unless a Default is in existence, neither the Administrative Agent Agent, the Canadian Administrative Agent, nor any Lender shall apply any payment which it receives to any Eurodollar Loan or CDOR Rate Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or such CDOR Rate Loan or (b) in the event, and only to the extent, with respect to CDOR Rate Loans, that there are no outstanding ABR Loans or Canadian Prime Rate Loans of the same Class, and with respect to Eurodollar Loans, as applicable, that there are no outstanding CBFR Loans of the same Class and, in any such event, the Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent, the Canadian Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. Notwithstanding the foregoing, any such application of proceeds from Collateral securing solely the Canadian Obligations shall be made solely in respect of Canadian Obligations.
(c) All At the election of the Administrative Agent or the Canadian Administrative Agent, as the case may be, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrowers Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or, if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, may be deducted from any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding Bank, as applicableAdministrative Agent. The Borrowers Each Borrower hereby irrevocably authorize authorizes (i) the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, Canadian Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, the Administrative Agent or the Canadian Administrative Agent, as applicable, to charge any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower the Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to any Borrower the Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrowers consent Each Borrower consents to the foregoing and agreeagrees, to the extent they it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
(e) Unless the Administrative Agent and the Canadian Funding Bank shall have received notice from the Borrowers Borrower Representative prior to the close of business on the date on which any payment is due to the Administrative Agent or the Canadian Funding Bank Administrative Agent, as applicable, for the account of the Lenders or the an Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent and or the Canadian Funding Bank Administrative Agent, as applicable, may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankBanks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent and or the Canadian Funding BankAdministrative Agent, as applicable, forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent and or the Canadian Funding BankAdministrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent or the Canadian Administrative Agent, as applicable, in accordance with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made by it hereunder, then the Administrative Agent or and, if applicable, the Canadian Funding Bank, as applicableAdministrative Agent, may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, for the account of such Lender to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paidpaid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any such amounts to, any future funding obligations of such Lender hereunder; application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent or the Canadian Administrative Agent, as applicable, in its discretion.
(g) Notwithstanding the foregoing, unless requested otherwise by Canadian Borrower (i) no Borrowings shall be made to Canadian Borrower for the purpose of paying any U.S. Obligations; and (ii) deposit accounts of Canadian Borrower may only be charged to pay Canadian Obligations.
Appears in 1 contract
Sources: Credit Agreement (Ddi Corp)
Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The Borrowers Except as otherwise provided in Section 2.04(e), each Borrower shall make each payment required to be made by them it hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.152.16, 2.16 2.17 or 2.172.18, or otherwise) prior to 1:00 p.m.11:00 a.m., Chicago New York City time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the US Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, be deemed to have been received on the next succeeding Business Day (or Canadian Business Day, if applicable) for purposes of calculating interest thereon. All such payments (shall be made to the US Administrative Agent at its offices at ▇2▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ or the Canadian Administrative Agent at its offices at 2▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, as applicable, except payments to be made directly to the Issuing Bank (including payments under any Existing Letters of Credit), Swingline Lender, Canadian or Swingline Lender or the Canadian Funding Bank as expressly provided herein and except that payments pursuant to Sections 2.15, Section 2.16, 2.17 or 2.18 and 9.03 shall be made directly to the Persons entitled thereto. The Each Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day (or Canadian Business Day, if applicable), the date for payment shall be extended to the next succeeding Business Day (or Canadian Business Day, if applicable), and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars (except that payments made under the Canadian Subfacility shall be made in Canadian dollars)US Dollars or CDN Dollars, as applicable. At all times that full cash dominion is in effect pursuant to Section 7.3 of the US Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collectioncollection as provided in Section 2.13(d).
(b) Any Subject to the Intercreditor Agreement, any proceeds of Collateral received by the US Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the BorrowersUS Borrower or Canadian Borrower, as applicable), (B) a mandatory prepayment (which shall be applied in accordance with Section 2.12) or (BC) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b2.11(d)) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent Agents so elects elect or the Required Lenders so direct, such funds shall be applied ratably ratably, first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent Agents and the Issuing Bank (including with respect to the Existing Letters of Credit) from the Borrowers (other than in connection with Banking ServicesServices or Swap Obligations), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking ServicesServices or Swap Obligations), third, to pay interest due in respect of the Overadvances and Protective Advances, fourth, to pay the principal of the Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably, sixth, to repay (A)(x) prepay principal on the Loans (other than the Overadvances and Protective Advances) and unreimbursed LC Disbursements ratably, seventh, to ratably and (y) pay an amount to the US Administrative Agent equal to one hundred three five percent (103105%) of the aggregate undrawn face amount of all outstanding Letters of CreditCredit and the aggregate amount of any unpaid LC Disbursements, to be held as cash collateral for such Obligations, eighthand (B) pay an amount to the Canadian Administrative Agent equal to one hundred five percent (105%) of the face amount of all outstanding Acceptances, to be held as cash collateral for such Obligations, seventh, to payment of any amounts owing with respect to Banking ServicesServices Obligations and Swap Obligations owed to any Lender or any of their Affiliates, ninthand eighth, to the payment of any other Secured Obligation due to the Administrative Agent Agents or any Lender by the Borrowers, and tenth, payment to Issuing Bank for issuance of standby L/C in favor of the Administrative Agent in an amount to be determined by the Administrative Agent with respect to Section 212(13.2) of the Income Tax Act (Canada)either Borrower. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the BorrowersUS Borrower or the Canadian Borrower, as applicable, or unless a Default is in existence, neither the either Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan or CDOR Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or CDOR Loan or (b) in the event, and only to the extent, that there are no outstanding ABR Loans, Canadian ABR Loans or Canadian Prime Rate Loans, as applicable, of the same Class and, in any event, the Borrowers such Borrower shall pay the break funding payment required in accordance with Section 2.162.17. The Administrative Agent Agents and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations.
(c) All At the election of the US Administrative Agent or the Canadian Administrative Agent, as applicable, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrowers US Borrower or the Canadian Borrower, as applicable, pursuant to Section 2.03 or a deemed request as provided in this Section or, if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, may be deducted from any deposit account of any such Borrower maintained with the applicable Administrative Agent or the Canadian Funding Bank, as applicableAgent. The Borrowers Each Borrower hereby irrevocably authorize authorizes (i) the applicable Administrative Agent or the Canadian Funding Bank, as applicable, to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, Canadian Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections Section 2.03, 2.04 2.05 or 2.052.06, as applicable and (ii) if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, the applicable Administrative Agent to charge any deposit account of any such Borrower maintained with the such Administrative Agent or the Canadian Funding Bank, as applicable, for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other relevant Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other relevant Lenders to the extent necessary so that the benefit of all such payments shall be shared by the relevant Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any either Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to any either Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrowers consent Each Borrower consents to the foregoing and agreeagrees, to the extent they it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any either Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
(e) Unless the US Administrative Agent and or the Canadian Funding Bank Administrative Agent, as applicable, shall have received notice from the Borrowers US Borrower or the Canadian Borrower, as applicable, prior to the close of business on the date on which any payment is due to the such Administrative Agent or the Canadian Funding Bank for the account of the US Lenders, the Canadian Lenders or the Issuing Bank hereunder that the Borrowers such Borrower will not make such payment, the such Administrative Agent and the Canadian Funding Bank may assume that the Borrowers have such Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the relevant Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if the Borrowers have such Borrower has not in fact made such payment, then each of the relevant Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the such Administrative Agent and the Canadian Funding Bank, as applicable, forthwith on demand the amount so distributed to such relevant Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the such Administrative Agent and the Canadian Funding BankAgent, at the greater of the Federal Funds Effective Rate and a rate determined by the such Administrative Agent in accordance with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made by it hereunderit, then the US Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the such Administrative Agent or the Canadian Funding Bank, as applicable, for the account of such Lender to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:00 2:00 p.m., Chicago time, on the date when due, in immediately available funds, without set-off set‑off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, except (i) payments of principal, interest, fees or reimbursements of LC Disbursements relating to any Canadian Loan or Canadian Letter of Credit shall be made to the Canadian Administrative Agent at its offices at TD Tower, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Canada, (ii) payments to be made directly to the an Issuing Bank (including payments under any Existing Letters of Credit), Swingline Lender, Canadian or Swingline Lender or the Canadian Funding Bank as expressly provided herein shall be made to such Issuing Bank or Swingline Lender, and except that (iii) payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Each of the Administrative Agent and the Canadian Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient recipient, in like funds, promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars the currency in which the applicable Obligations are denominated (except that payments made under the Canadian Subfacility shall be made in Canadian dollars). At all times that full cash dominion is in effect pursuant to Section 7.3 of the Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collectionthe proviso set forth in the first sentence of Section 1.05), and, if not otherwise specified, in dollars.
(b) Any Subject to Section 12.01 (and subject at any time that any Permitted Term Debt is outstanding, to the terms of the applicable Permitted Term Debt Intercreditor Agreement), any proceeds of Collateral received by the Administrative Agent or the Canadian Funding Bank, as applicable, (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers) or (B) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b)) or (ii) Administrative Agent after an Event of Default has occurred and is continuing and the Administrative Agent or the Canadian Administrative Agent so elects elects, or the Required Lenders so direct, such funds shall be applied ratably (based in respect of each of the following separate categories, computed independently of the other categories, on each Lender Party’s interest in the aggregate specific type of outstanding Secured Obligations described within (and only within) each specific category of Secured Obligations listed respectively below) first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent Agent, the Canadian Administrative Agent, and the each Issuing Bank (including with respect to the Existing Letters of Credit) from the Borrowers (other than in connection with Banking ServicesServices or Swap Agreement Obligations), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking ServicesServices or Swap Agreement Obligations), third, to pay interest due in respect of the Swingline Loans, Overadvances and Protective Advances, fourth, to pay the principal of the Swingline Loans, Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Swingline Loans, Overadvances and Protective Advances) ratably), sixth, to repay prepay principal on the Loans (other than the Swingline Loans, Overadvances and Protective Advances) and unreimbursed LC Disbursements ratablyDisbursements, seventh, to pay an amount to the Administrative Agent equal to one hundred three percent (103%) of the aggregate undrawn face U.S. LC Exposure, and to pay an amount to the Canadian Administrative Agent equal to one hundred three percent (103%) of all outstanding Letters of Creditthe Canadian LC Exposure, to be held as cash collateral for such Obligations, eighth, to payment of pay any amounts owing to the Lenders and their Affiliates with respect to Specified Foreign Credit Extensions up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, ninth, to pay any amounts owing to the Lenders and their Affiliates with respect to Banking ServicesServices up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, ninthSwap Agreement Obligations up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22 and Foreign Credit Extensions (other than Specified Foreign Credit Extensions), and tenth, to the payment of pay any other Secured Obligation due to the Administrative Agent, the Canadian Administrative Agent or any Lender by the Borrowers. Notwithstanding the foregoing, and tenth, payment amounts received from any Loan Party shall not be applied to Issuing Bank for issuance any Excluded Swap Obligation of standby L/C in favor of the Administrative Agent in an amount to be determined by the Administrative Agent with respect to Section 212(13.2) of the Income Tax Act (Canada)such Loan Party. Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the BorrowersBorrower Representative, or unless a an Event of Default is in existence, neither the Administrative Agent Agent, the Canadian Administrative Agent, nor any Lender shall apply any payment which it receives to any Eurodollar Loan or CDOR Rate Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or such CDOR Rate Loan or (b) in the event, and only to the extent, with respect to CDOR Rate Loans, that there are no outstanding Canadian Prime Rate Loans of the same Class, and with respect to Eurodollar Loans, that there are no outstanding ABR Loans or Canadian Prime Rate Loans, as applicable, of the same Class and, in any such event, the Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent, the Canadian Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. Notwithstanding the foregoing but subject to Section 9.20, any such application of proceeds from Collateral securing solely the Canadian Obligations shall be made solely in respect of Canadian Obligations.
(c) All At the election of the Administrative Agent or the Canadian Administrative Agent, as the case may be, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrowers Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or, if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, may be deducted from any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding Bank, as applicableAdministrative Agent. The Borrowers Each Borrower hereby irrevocably authorize authorizes (i) the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, Canadian Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, the Administrative Agent or the Canadian Administrative Agent, as applicable, to charge any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.
(d) If any Lender shall, by exercising any right of set-off set‑off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower the Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to any Borrower the Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrowers consent Each Borrower consents to the foregoing and agreeagrees, to the extent they it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
(e) Unless the Administrative Agent and the Canadian Funding Bank shall have received notice from the Borrowers Borrower Representative prior to the close of business on the date on which any payment is due to the Administrative Agent or the Canadian Funding Bank Administrative Agent, as applicable, for the account of the Lenders or the an Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent and or the Canadian Funding Bank Administrative Agent, as applicable, may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankBanks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent and or the Canadian Funding BankAdministrative Agent, as applicable, forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent and or the Canadian Funding BankAdministrative Agent, at the greater of the Federal Funds Effective NYFRB Rate and a rate determined by the Administrative Agent or the Canadian Administrative Agent, as applicable, in accordance with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made by it hereunder, then the Administrative Agent or and, if applicable, the Canadian Funding Bank, as applicableAdministrative Agent, may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, for the account of such Lender to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paidpaid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any such amounts to, any future funding obligations of such Lender hereunder; application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent or the Canadian Administrative Agent, as applicable, in its discretion.
(g) Notwithstanding the foregoing, unless requested otherwise by the Canadian Borrowers (i) no Borrowings shall be made to a Canadian Borrower for the purpose of paying any U.S. Obligations; and (ii) deposit accounts of the Canadian Borrowers may only be charged to pay Canadian Obligations.
Appears in 1 contract
Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a1) The Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:00 2:00 p.m., Chicago time, on the date when due, in immediately available funds, without set-off set‑off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, except (i) payments of principal, interest, fees or reimbursements of LC Disbursements relating to any Canadian Loan or Canadian Letter of Credit shall be made to the Canadian Administrative Agent at its offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Bank Plaza, Floor 18, Toronto M57 2J2 Canada, (ii) payments to be made directly to the an Issuing Bank (including payments under any Existing Letters of Credit), Swingline Lender, Canadian or Swingline Lender or the Canadian Funding Bank as expressly provided herein shall be made to such Issuing Bank or Swingline Lender, and except that (iii) payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Each of the Administrative Agent and the Canadian Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient recipient, in like funds, promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars the currency in which the applicable Obligations are denominated (except that payments made under the Canadian Subfacility shall be made in Canadian dollars). At all times that full cash dominion is in effect pursuant to Section 7.3 of the Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collectionthe proviso set forth in the first sentence of Section 1.05), and, if not otherwise specified, in dollars.
(ba) Any Subject to the terms of the ABL-Term Loan Intercreditor Agreement and to Section 12.01, any proceeds of Collateral received by the Administrative Agent or the Canadian Funding Bank, as applicable, (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers) or (B) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b)) or (ii) Administrative Agent after an Event of Default has occurred and is continuing and the Administrative Agent or the Canadian Administrative Agent so elects elects, or the Required Lenders so direct, such funds shall be applied ratably (based in respect of each of the following separate categories, computed independently of the other categories, on each Lender Party’s interest in the aggregate specific type of outstanding Secured Obligations described within (and only within) each specific category of Secured Obligations listed respectively below) first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent Agent, the Canadian Administrative Agent, and the each Issuing Bank (including with respect to the Existing Letters of Credit) from the Borrowers (other than in connection with Banking ServicesServices or Swap Agreement Obligations), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking ServicesServices or Swap Agreement Obligations), third, to pay interest due in respect of the Swingline Loans, Overadvances and Protective Advances, fourth, to pay the principal of the Swingline Loans, Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Swingline Loans, Overadvances and Protective Advances) ratably), sixth, to repay prepay principal on the Loans (other than the Swingline Loans, Overadvances and Protective Advances) and unreimbursed LC Disbursements ratablyDisbursements, seventh, to pay an amount to the Administrative Agent equal to one hundred three percent (103%) of the aggregate undrawn face U.S. LC Exposure, and to pay an amount to the Canadian Administrative Agent equal to one hundred three percent (103%) of all outstanding Letters of Creditthe Canadian LC Exposure, to be held as cash collateral for such Obligations, eighth, to payment of pay any amounts owing to the Lenders and their Affiliates with respect to Specified Foreign Credit Extensions up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, ninth, to pay any amounts owing to the Lenders and their Affiliates with respect to Banking ServicesServices up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, ninthSwap Agreement Obligations up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22 and Foreign Credit Extensions (other than Specified Foreign Credit Extensions), and tenth, to the payment of pay any other Secured Obligation due to the Administrative Agent, the Canadian Administrative Agent or any Lender by the Borrowers, and tenth, payment to Issuing Bank for issuance of standby L/C in favor of the Administrative Agent in an amount to be determined by the Administrative Agent with respect to Section 212(13.2) of the Income Tax Act (Canada). Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the BorrowersBorrower Representative, or unless a an Event of Default is in existence, neither the Administrative Agent Agent, the Canadian Administrative Agent, nor any Lender shall apply any payment which it receives to any Eurodollar Loan or CDOR Rate Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or such CDOR Rate Loan or (b) in the event, and only to the extent, with respect to CDOR Rate Loans, that there are no outstanding Canadian Prime Rate Loans of the same Class, and with respect to Eurodollar Loans, that there are no outstanding ABR Loans or Canadian Prime Rate Loans, as applicable, of the same Class and, in any such event, the Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent, the Canadian Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. Notwithstanding the foregoing but subject to Section 9.20, any such application of proceeds from Collateral securing solely the Canadian Obligations shall be made solely in respect of Canadian Obligations.
(cb) All At the election of the Administrative Agent or the Canadian Administrative Agent, as the case may be, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrowers Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or, if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, may be deducted from any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding Bank, as applicableAdministrative Agent. The Borrowers Each Borrower hereby irrevocably authorize authorizes (i) the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, Canadian Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, the Administrative Agent or the Canadian Administrative Agent, as applicable, to charge any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.
(dc) If any Lender shall, by exercising any right of set-off set‑off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower the Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to any Borrower the Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrowers consent Each Borrower consents to the foregoing and agreeagrees, to the extent they it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
(ed) Unless the Administrative Agent and the Canadian Funding Bank shall have received notice from the Borrowers Borrower Representative prior to the close of business on the date on which any payment is due to the Administrative Agent or the Canadian Funding Bank Administrative Agent, as applicable, for the account of the Lenders or the an Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent and or the Canadian Funding Bank Administrative Agent, as applicable, may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankBanks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent and or the Canadian Funding BankAdministrative Agent, as applicable, forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent and or the Canadian Funding BankAdministrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent or the Canadian Administrative Agent, as applicable, in accordance with banking industry rules on interbank compensation.
(fe) If any Lender shall fail to make any payment required to be made by it hereunder, then the Administrative Agent or and, if applicable, the Canadian Funding Bank, as applicableAdministrative Agent, may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, for the account of such Lender to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paidpaid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any such amounts to, any future funding obligations of such Lender hereunder; application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent or the Canadian Administrative Agent, as applicable, in its discretion.
(f) Notwithstanding the foregoing, unless requested otherwise by the Canadian Borrowers (i) no Borrowings shall be made to a Canadian Borrower for the purpose of paying any U.S. Obligations; and (ii) deposit accounts of the Canadian Borrowers may only be charged to pay Canadian Obligations.
Appears in 1 contract
Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:00 3:00 p.m., Chicago timeLocal Time, on the date when due, in immediately available funds, without set-off or counterclaim. All payments hereunder shall be made in dollars. All payments made in respect of Loans shall be made for the account of the Lenders pro rata in accordance with the respective unpaid principal amounts of the Loans held by such Lenders. Any amounts received after such time 3:00 p.m. Local Time on any date may, in the discretion of the applicable Administrative Agent or the Canadian Funding Bank, as applicable, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made (i) with respect to payments of US Revolving Loans and Term Loans, to the US Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, (ii) with respect to payments of Canadian Revolving Loans, to the Canadian Administrative Agent at its offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Bank Plaza, Floor 18, Toronto, M57 2J2 Canada, except payments to be made directly to the Issuing Bank (including payments under any Existing Letters of Credit), Swingline Lender, Canadian or to a Swingline Lender or the Canadian Funding Bank as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Each of the US Administrative Agent and the Canadian Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars (except that payments made under the Canadian Subfacility shall be made in Canadian dollars). At all times that full cash dominion is in effect pursuant to Section 7.3 of the Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection.
(b) Any proceeds of Collateral received by the any Administrative Agent or the Canadian Funding Bank, as applicable, (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers), (B) a mandatory prepayment (which shall be applied in accordance with Section 2.11) or (BC) amounts to be applied from the Collection Account when full cash dominion is in effect during a Full Cash Dominion Period (which shall be applied in accordance with Section 2.10(b2.10(d)) or (ii) after an Event of Default has occurred and is continuing and the US Administrative Agent so elects or the Required Lenders so direct, such funds shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the any Administrative Agent and the Issuing Bank (including with respect to the Existing Letters of Credit) Banks from the Borrowers (other than in connection with Banking ServicesServices or Swap Obligations), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking ServicesServices or Swap Obligations), third, to pay interest due in respect of the Overadvances and Protective Advances, fourth, to pay the principal of the Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably, sixth, to repay prepay principal on the Loans (other than the Overadvances and Protective Advances) and unreimbursed LC Disbursements ratablyratably (with amounts applied to the Eighteen Month Term Loans and the Twenty-Six Month Term Loans on a pro rata basis (in each case, against remaining installments in inverse order of maturity), seventh, to pay an amount to the US Administrative Agent equal to one hundred three percent (103%) of the aggregate undrawn face amount of all outstanding Letters of CreditCredit and the aggregate amount of any unpaid LC Disbursements, to be held as cash collateral for such Obligations, eighth, to payment of any amounts owing with respect to Banking ServicesServices and Swap Obligations, and ninth, to the payment of any other Secured Obligation due to the any Administrative Agent or any Lender by the Borrowers, and tenth, payment to Issuing Bank for issuance of standby L/C in favor of the Administrative Agent in an amount to be determined by the Administrative Agent with respect to Section 212(13.2) of the Income Tax Act (Canada). Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the BorrowersBorrower Representative, or unless a an Event of Default is in existencecontinuing, neither the US Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan or CDOR Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or CDOR Loan or (b) in the event, and only to the extent, that there are no outstanding ABR Loans or Canadian Prime Rate Loans, as applicable, of the same Class and, in any such event, (subject to the terms of Section 2.18(e)) the US Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Each of the US Administrative Agent, the Canadian Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. Notwithstanding the foregoing, any such payment from the Canadian Borrower and any such application of proceeds from Collateral of the Canadian Loan Parties shall be made solely in respect of Obligations of the Canadian Loan Parties.
(c) All At the election of the US Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made of US Revolving Loans hereunder whether made following a request by the Borrowers Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or, if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, may be deducted from any deposit account of any US Borrower maintained with the US Administrative Agent or the Canadian Funding Bank, as applicableAgent. The US Borrowers hereby irrevocably authorize (i) the US Administrative Agent or the Canadian Funding Bank, as applicable, to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, Canadian Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable applicable. At the election of the Canadian Administrative Agent, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and (iiexpenses pursuant to Section 9.03) if there for which the Canadian Borrower is not sufficient Availability obligated, and other sums payable in respect of Obligations of the Canadian Borrower under the Loan Documents, may be paid from the proceeds of Borrowings of Canadian Revolving Loans hereunder whether made following a request by the Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or may be deducted from any deposit account of the Canadian Borrower maintained with the Canadian Administrative Agent. The Canadian Borrower hereby irrevocably authorizes the Canadian Administrative Agent to make a Borrowing for the purpose of paying each payment of principal, interest and fees in respect of Canadian Revolving Loans as such payment becomes due hereunder or any other amount due from the Canadian Borrower under the Loan Documents and agrees that all such amounts charged shall constitute Canadian Revolving Loans (including Canadian Swingline Loans, but such a Borrowing may only constitute a Canadian Protective Advance for purposes of this Section 2.18(c), if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all conditions such Borrowings shall be deemed to Borrowing have not been satisfiedrequested pursuant to Sections 2.03, 2.04 or 2.05, as applicable. The US Borrowers authorize the US Administrative Agent to charge any deposit account of any US Borrower maintained with the US Administrative Agent or the Canadian Funding Bank, as applicable, for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents. The Canadian Borrower authorize the Canadian Administrative Agent to charge any deposit account of the Canadian Borrower maintained with the Canadian Administrative Agent for each payment of principal, interest and fees in respect of Canadian Revolving Loans as such payment becomes due hereunder or any other amount due from the Canadian Borrower under the Loan Documents. Notwithstanding the foregoing, any such payment from the Canadian Borrower and any such application of proceeds from Collateral of the Canadian Loan Parties shall be made solely in respect of Obligations of the Canadian Loan Parties.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower the Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participantparticipant (including, other than for the avoidance of doubt, any assignment of or sale of a participation in any Loans to any Borrower the Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall applyin accordance with Section 9.04(b)(ii)(G)). The Borrowers consent Each Borrower consents to the foregoing and agreeagrees, to the extent they it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
(e) Notwithstanding any provision of this Agreement to the contrary, if at any time that the US Borrowers or the Canadian Borrower, as applicable, are required to make a payment or prepayment hereunder, the US Borrowers, or the Canadian Borrower, as applicable, would incur breakage costs under Section 2.16 as a result of any Eurodollar Loan being prepaid other than on the last day of an Interest Period applicable thereto (each such Eurodollar Loan, an “Affected Eurodollar Loan”), and provided that no Event of Default shall have occurred and is continuing at such time, then the US Borrowers or the Canadian Borrower, as applicable, may, in their discretion, initially deposit a portion (up to 100%) of the amount that otherwise would have been paid in respect of any Affected Eurodollar Loan with the applicable Administrative Agent, (which deposit must be equal in amount to the aggregate amount of the Affected Eurodollar Loans not immediately prepaid plus accrued interest to the date of such deposit (the amount of such deposit, the “Cash Collateral Amount”)) to be held as security for the Obligations of the Loan Parties hereunder pursuant to a cash collateral agreement to be entered into in form and substance reasonably satisfactory to the applicable Administrative Agent. On the last day of the Interest Period in which the Cash Collateral Amount is deposited in accordance with this Section 2.18(e) in respect of the applicable Affected Eurodollar Loans (or such earlier date or dates as shall be requested by the US Borrowers or the Canadian Borrower, as applicable), the Cash Collateral Amount shall be applied to repay an aggregate principal amount of such Loans equal to the Affected Eurodollar Loans not initially prepaid pursuant to this sentence, plus accrued interest thereon to the date of such deposit (it being understood, for avoidance of doubt, that the US Borrowers or the Canadian Borrower, as applicable, shall also be required to pay on the date of such application interest which has accrued on each such Affected Eurodollar Loan from the date of such deposit to the date of such application in accordance with Section 2.13(e)(ii)). Notwithstanding anything to the contrary contained in this Section 2.18(e), all Cash Collateral Amounts deposited in accordance with this Section 2.18(e) shall be held for the sole benefit of the Lenders whose Loans would otherwise have been immediately prepaid with the amounts deposited and may be applied to the prepayment of such Loans immediately if an Event of Default has occurred and is continuing.
(f) Unless the applicable Administrative Agent and the Canadian Funding Bank shall have received notice from the Borrowers Borrower Representative prior to the close of business on the date on which any payment is due to the such Administrative Agent or the Canadian Funding Bank for the account of the Lenders or the Issuing Bank hereunder that the Borrowers applicable Borrower(s) will not make such payment, the applicable Administrative Agent and the Canadian Funding Bank may assume that the Borrowers applicable Borrower(s) have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the US Administrative Agent and or the Canadian Funding BankAdministrative Agent, as applicable, forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the US Administrative Agent and or the Canadian Funding BankAdministrative Agent, as applicable, at the greater of the Federal Funds Effective Rate and a rate determined by the US Administrative Agent in accordance with banking industry rules on interbank compensation.
(fg) If any Lender shall fail to make any payment required to be made by it hereunder, then the applicable Administrative Agent or the Canadian Funding Bank, as applicable, may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the applicable Administrative Agent or the Canadian Funding Bank, as applicable, for the account of such Lender to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Sources: Credit Agreement (Bowne & Co Inc)
Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:00 2:00 p.m., Chicago time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, except (i) payments of principal, interest, fees or reimbursements of LC Disbursements relating to any Canadian Loan or Canadian Letter of Credit shall be made to the Canadian Administrative Agent at its offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Bank Plaza, Floor 18, Toronto M57 2J2 Canada, (ii) payments to be made directly to the an Issuing Bank (including payments under any Existing Letters of Credit), Swingline Lender, Canadian or Swingline Lender or the Canadian Funding Bank as expressly provided herein shall be made to such Issuing Bank or Swingline Lender, and except that (iii) payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Each of the Administrative Agent and the Canadian Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient recipient, in like funds, promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars the currency in which the applicable Obligations are denominated (except that payments made under the Canadian Subfacility shall be made in Canadian dollars). At all times that full cash dominion is in effect pursuant to Section 7.3 of the Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collectionthe proviso set forth in the first sentence of Section 1.05), and, if not otherwise specified, in dollars.
(b) Any Subject to the terms of the ABL-Term Loan Intercreditor Agreement, any proceeds of Collateral received by the Administrative Agent or the Canadian Funding Bank, as applicable, (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers) or (B) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b)) or (ii) Administrative Agent after an Event of Default has occurred and is continuing and the Administrative Agent or the Canadian Administrative Agent so elects elects, or the Required Lenders so direct, such funds shall be applied ratably (based in respect of each of the following separate categories, computed independently of the other categories, on each Lender Party’s interest in the aggregate specific type of outstanding Secured Obligations described within (and only within) each specific category of Secured Obligations listed respectively below) first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent Agent, the Canadian Administrative Agent, and the each Issuing Bank (including with respect to the Existing Letters of Credit) from the Borrowers (other than in connection with Banking ServicesServices or Swap Obligations), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking ServicesServices or Swap Obligations), third, to pay interest due in respect of the Swingline Loans, Overadvances and Protective Advances, fourth, to pay the principal of the Swingline Loans, Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Swingline Loans, Overadvances and Protective Advances) ratably), sixth, to repay prepay principal on the Loans (other than the Swingline Loans, Overadvances and Protective Advances) and unreimbursed LC Disbursements ratablyDisbursements, seventh, to pay an amount to the Administrative Agent equal to one hundred three percent (103%) of the aggregate undrawn face U.S. LC Exposure, and to pay an amount to the Canadian Administrative Agent equal to one hundred three percent (103%) of all outstanding Letters of Creditthe Canadian LC Exposure, to be held as cash collateral for such Obligations, eighth, to payment of pay any amounts owing to the Lenders and their Affiliates with respect to Specified Foreign Credit Extensions up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, ninth, to pay any amounts owing to the Lenders and their Affiliates with respect to Banking ServicesServices up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22, ninthSwap Obligations up to and including the amount most recently provided to the Administrative Agent pursuant to Section 2.22 and Foreign Credit Extensions (other than Specified Foreign Credit Extensions), and tenth, to the payment of pay any other Secured Obligation due to the Administrative Agent, the Canadian Administrative Agent or any Lender by the Borrowers, and tenth, payment to Issuing Bank for issuance of standby L/C in favor of the Administrative Agent in an amount to be determined by the Administrative Agent with respect to Section 212(13.2) of the Income Tax Act (Canada). Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the BorrowersBorrower Representative, or unless a Default is in existence, neither the Administrative Agent Agent, the Canadian Administrative Agent, nor any Lender shall apply any payment which it receives to any Eurodollar Loan or CDOR Rate Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or such CDOR Rate Loan or (b) in the event, and only to the extent, with respect to CDOR Rate Loans, that there are no outstanding Canadian Prime Rate Loans of the same Class, and with respect to Eurodollar Loans, that there are no outstanding ABR Loans or Canadian Prime Rate Loans, as applicable, of the same Class and, in any such event, the Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent, the Canadian Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations. Notwithstanding the foregoing but subject to Section 9.20, any such application of proceeds from Collateral securing solely the Canadian Obligations shall be made solely in respect of Canadian Obligations.
(c) All At the election of the Administrative Agent or the Canadian Administrative Agent, as the case may be, all payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrowers Borrower Representative pursuant to Section 2.03 or a deemed request as provided in this Section or, if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, may be deducted from any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding Bank, as applicableAdministrative Agent. The Borrowers Each Borrower hereby irrevocably authorize authorizes (i) the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, Canadian Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, the Administrative Agent or the Canadian Administrative Agent, as applicable, to charge any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower the Borrowers pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to any Borrower the Borrowers or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrowers consent Each Borrower consents to the foregoing and agreeagrees, to the extent they it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any such Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
(e) Unless the Administrative Agent and the Canadian Funding Bank shall have received notice from the Borrowers Borrower Representative prior to the close of business on the date on which any payment is due to the Administrative Agent or the Canadian Funding Bank Administrative Agent, as applicable, for the account of the Lenders or the an Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent and or the Canadian Funding Bank Administrative Agent, as applicable, may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing BankBanks, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing BankBanks, as the case may be, severally agrees to repay to the Administrative Agent and or the Canadian Funding BankAdministrative Agent, as applicable, forthwith on demand the amount so distributed to such Lender or such Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent and or the Canadian Funding BankAdministrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent or the Canadian Administrative Agent, as applicable, in accordance with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made by it hereunder, then the Administrative Agent or and, if applicable, the Canadian Funding Bank, as applicableAdministrative Agent, may, in its discretion (notwithstanding any contrary provision hereof), (i) apply any amounts thereafter received by the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, for the account of such Lender to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paidpaid and/or (ii) hold any such amounts in a segregated account as cash collateral for, and apply any such amounts to, any future funding obligations of such Lender hereunder; application of amounts pursuant to (i) and (ii) above shall be made in such order as may be determined by the Administrative Agent or the Canadian Administrative Agent, as applicable, in its discretion.
(g) Notwithstanding the foregoing, unless requested otherwise by the Canadian Borrowers (i) no Borrowings shall be made to a Canadian Borrower for the purpose of paying any U.S. Obligations; and (ii) deposit accounts of the Canadian Borrowers may only be charged to pay Canadian Obligations.
Appears in 1 contract
Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:00 2:00 p.m., Chicago time, on the date when due, in immediately available funds, without set-set off or counterclaim. All payments hereunder shall be made in dollars except that all payments in respect of Loans (and interest thereon) and LC Exposures to be made to the Canadian Lenders or the Canadian Administrative Agent shall be made in the same currency in which such Loan was made or Letter of Credit issued. All such payments shall be made and allocated, in the case of the U.S. Loans, for the account of the U.S. Lenders, and in the case of the Canadian Loans, for the account of its Canadian Lenders, in each case pro rata in accordance with the respective unpaid principal amounts of the U.S. Loans and the U.S. LC Exposure or the Canadian Loans and the Canadian LC Exposure, as the case may be, made to the applicable Borrower held by them. Any amounts received after such time on any date may, in the discretion of the Administrative Agent or the Canadian Funding BankAdministrative Agent, as applicable, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, except (i) with respect to payments of Canadian Loans, LC Disbursements of any Issuing Bank in respect of Canadian Letters of Credit, fronting fees payable to any Issuing Bank in respect of Canadian Letters of Credit, the Canadian Administrative Agent at its offices at ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ Bank Plaza, Floor 18, Toronto M57 2J2 Canada, and (ii) payments to be made directly to the an Issuing Bank (including payments under any Existing Letters of Credit), Swingline Lender, Canadian or Swingline Lender or the Canadian Funding Bank as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Each of the Administrative Agent and the Canadian Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient recipient, in like funds, promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars (except that payments made under the Canadian Subfacility shall be made in Canadian dollars). At all times that full cash dominion is in effect pursuant to Section 7.3 of the Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection.
(b) Any proceeds of Collateral received by the Administrative Agent or the Canadian Funding Bank, as applicable, (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers) or (B) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b)) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders so direct, such funds shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent and the Issuing Bank (including with respect to the Existing Letters of Credit) from the Borrowers (other than in connection with Banking Services), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking Services), third, to pay interest due in respect of the Overadvances and Protective Advances, fourth, to pay the principal of the Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably, sixth, to repay principal on the Loans (other than the Overadvances and Protective Advances) and unreimbursed LC Disbursements ratably, seventh, to pay an amount to the Administrative Agent equal to one hundred three percent (103%) of the aggregate undrawn face amount of all outstanding Letters of Credit, to be held as cash collateral for such Obligations, eighth, to payment of any amounts owing with respect to Banking Services, ninth, to the payment of any other Secured Obligation due to the Administrative Agent or any Lender by the Borrowers, and tenth, payment to Issuing Bank for issuance of standby L/C in favor of the Administrative Agent in an amount to be determined by the Administrative Agent with respect to Section 212(13.2) of the Income Tax Act (Canada). Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrowers, or unless a Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan or CDOR Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or CDOR Loan or (b) in the event, and only to the extent, that there are no outstanding ABR Loans or Canadian Prime Rate Loans, as applicable, of the same Class and, in any event, the Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations.
(c) All payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrowers pursuant to Section 2.03 or a deemed request as provided in this Section or, if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, may be deducted from any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding Bank, as applicable. The Borrowers hereby irrevocably authorize (i) the Administrative Agent or the Canadian Funding Bank, as applicable, to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, Canadian Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, the Administrative Agent to charge any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding Bank, as applicable, for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to any Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrowers consent to the foregoing and agree, to the extent they may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
(e) Unless the Administrative Agent and the Canadian Funding Bank shall have received notice from the Borrowers prior to the close of business on the date on which any payment is due to the Administrative Agent or the Canadian Funding Bank for the account of the Lenders or the Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent and the Canadian Funding Bank may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent and the Canadian Funding Bank, as applicable, forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent and the Canadian Funding Bank, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made by it hereunder, then the Administrative Agent or the Canadian Funding Bank, as applicable, may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent or the Canadian Funding Bank, as applicable, for the account of such Lender to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paid.
Appears in 1 contract
Payments Generally; Allocation of Proceeds; Sharing of Set-offs. (a) The Borrowers shall make each payment required to be made by them hereunder (whether of principal, interest, fees or reimbursement of LC Disbursements, or of amounts payable under Section 2.15, 2.16 or 2.17, or otherwise) prior to 1:00 p.m., Chicago time, on the date when due, in immediately available funds, without set-off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent or the Canadian Funding Bank, as applicable, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the Administrative Agent at its offices at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇Illinois, except payments to be made directly to the Issuing Bank (including payments under any Existing Letters of Credit), Swingline Lender, Canadian Swingline Lender or the Canadian Funding Bank as expressly provided herein and except that payments pursuant to Sections 2.15, 2.16, 2.17 and 9.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in dollars (except that payments made under the Canadian Subfacility shall be made in Canadian dollars). At all times that full cash dominion is in effect pursuant to Section 7.3 of the Security Agreement, solely for purposes of determining the amount of Loans available for borrowing purposes, checks and cash or other immediately available funds from collections of items of payment and proceeds of any Collateral shall be applied in whole or in part against the Obligations, on the day of receipt, subject to actual collection.
(b) Any proceeds of Collateral received by the Administrative Agent or the Canadian Funding Bank, as applicable, (i) not constituting either (A) a specific payment of principal, interest, fees or other sum payable under the Loan Documents (which shall be applied as specified by the Borrowers) or (B) amounts to be applied from the Collection Account when full cash dominion is in effect (which shall be applied in accordance with Section 2.10(b)) or (ii) after an Event of Default has occurred and is continuing and the Administrative Agent so elects or the Required Lenders so direct, such funds shall be applied ratably first, to pay any fees, indemnities, or expense reimbursements including amounts then due to the Administrative Agent and the Issuing Bank (including with respect to the Existing Letters of Credit) from the Borrowers (other than in connection with Banking Services), second, to pay any fees or expense reimbursements then due to the Lenders from the Borrowers (other than in connection with Banking Services), third, to pay interest due in respect of the Overadvances and Protective Advances, fourth, to pay the principal of the Overadvances and Protective Advances, fifth, to pay interest then due and payable on the Loans (other than the Overadvances and Protective Advances) ratably, sixth, to repay principal on the Loans (other than the Overadvances and Protective Advances) and unreimbursed LC Disbursements ratably, seventh, to pay an amount to the Administrative Agent equal to one hundred three percent (103%) of the aggregate undrawn face amount of all outstanding Letters of Credit, to be held as cash collateral for such Obligations, eighth, to payment of any amounts owing with respect to Banking Services, ninth, to the payment of any other Secured Obligation due to the Administrative Agent or any Lender by the Borrowers, and tenth, payment to Issuing Bank for issuance of standby L/C in favor of the Administrative Agent in an amount to be determined by the Administrative Agent with respect to Section 212(13.2) of the Income Tax Act (Canada). Notwithstanding anything to the contrary contained in this Agreement, unless so directed by the Borrowers, or unless a Default is in existence, neither the Administrative Agent nor any Lender shall apply any payment which it receives to any Eurodollar Loan or CDOR Loan of a Class, except (a) on the expiration date of the Interest Period applicable to any such Eurodollar Loan or CDOR Loan or (b) in the event, and only to the extent, that there are no outstanding ABR Loans or Canadian Prime Rate Loans, as applicable, of the same Class and, in any event, the Borrowers shall pay the break funding payment required in accordance with Section 2.16. The Administrative Agent and the Lenders shall have the continuing and exclusive right to apply and reverse and reapply any and all such proceeds and payments to any portion of the Secured Obligations.
(c) All payments of principal, interest, LC Disbursements, fees, premiums, reimbursable expenses (including, without limitation, all reimbursement for fees and expenses pursuant to Section 9.03), and other sums payable under the Loan Documents, may be paid from the proceeds of Borrowings made hereunder whether made following a request by the Borrowers pursuant to Section 2.03 or a deemed request as provided in this Section or, if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, may be deducted from any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding Bank, as applicable. The Borrowers hereby irrevocably authorize (i) the Administrative Agent or the Canadian Funding Bank, as applicable, to make a Borrowing for the purpose of paying each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents and agrees that all such amounts charged shall constitute Loans (including Swingline Loans, Canadian Swingline Loans and Overadvances, but such a Borrowing may only constitute a Protective Advance if it is to reimburse costs, fees and expenses as described in Section 9.03) and that all such Borrowings shall be deemed to have been requested pursuant to Sections 2.03, 2.04 or 2.05, as applicable and (ii) if there is not sufficient Availability to make such payment or if all conditions to Borrowing have not been satisfied, the Administrative Agent to charge any deposit account of any Borrower maintained with the Administrative Agent or the Canadian Funding Bank, as applicable, for each payment of principal, interest and fees as it becomes due hereunder or any other amount due under the Loan Documents.
(d) If any Lender shall, by exercising any right of set-off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans or participations in LC Disbursements resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and participations in LC Disbursements and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans and participations in LC Disbursements of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and participations in LC Disbursements; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by any Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or participations in LC Disbursements to any assignee or participant, other than to any Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrowers consent to the foregoing and agree, to the extent they may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against any Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of such Borrower in the amount of such participation.
(e) Unless the Administrative Agent and the Canadian Funding Bank shall have received notice from the Borrowers prior to the close of business on the date on which any payment is due to the Administrative Agent or the Canadian Funding Bank for the account of the Lenders or the Issuing Bank hereunder that the Borrowers will not make such payment, the Administrative Agent and the Canadian Funding Bank may assume that the Borrowers have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders or the Issuing Bank, as the case may be, the amount due. In such event, if the Borrowers have not in fact made such payment, then each of the Lenders or the Issuing Bank, as the case may be, severally agrees to repay to the Administrative Agent and the Canadian Funding Bank, as applicable, forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent and the Canadian Funding Bank, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
(f) If any Lender shall fail to make any payment required to be made by it hereunder, then the Administrative Agent or the Canadian Funding Bank, as applicable, may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent or the Canadian Funding Bank, as applicable, for the account of such Lender to satisfy such Lender’s obligations hereunder until all such unsatisfied obligations are fully paid.
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