Common use of Application of Collateral Proceeds Clause in Contracts

Application of Collateral Proceeds. The proceeds and/or avails of the Collateral, or any part thereof, and the proceeds and the avails of any remedy hereunder (as well as any other amounts of any kind held by Agent at the time of, or received by Agent after, the occurrence of an Event of Default hereunder) shall be paid to and applied as follows: (i) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ fees, incurred or made hereunder by Agent or Lenders; (ii) Second, to the payment to Lenders pro rata in accordance with the Advance Percentages of the amounts then owing or unpaid on the Notes, including each payment scheduled to be made under Sections 1.02(b), 1.02(c) and 1.02(d) of this Loan Agreement; (iii) Third, to the payment of other amounts then payable to Agent or Lenders under any of the Transaction Documents; and (iv) Fourth, to the payment of the surplus, if any, to Borrower, its successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders.

Application of Collateral Proceeds. The proceeds and/or avails of the Collateral, or any part thereof, and the proceeds and the avails resulting from Agent’s or Lenders’ exercise of any remedy remedies hereunder (as well as any other amounts of any kind held by Agent at the time of, or received by Agent after, the occurrence of an Event of Default hereunder) shall be paid to and applied as follows: (i) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ fees, incurred or made hereunder by Agent or Lenders; (ii) Second, to the payment to Lenders pro rata in accordance with the Advance Loan Percentages of the amounts then owing or unpaid on the Notes, including each payment scheduled to be made under Sections 1.02(b), 1.02(cSection 2.02(b) and 1.02(dSection 2.02(c) of this Loan Agreement; (iii) Third, to the payment of other amounts then payable to Agent or Lenders under any of the Transaction Documents; and (iv) Fourth, to the payment of the surplus, if any, to Borrower, its successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, Collateral shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders.

Application of Collateral Proceeds. The proceeds and/or avails of the Collateral, or any part thereof, and the proceeds and the avails resulting from Agent’s or Lenders’ exercise of any remedy remedies hereunder (as well as any other amounts of any kind held by Agent at the time of, or received by Agent after, the occurrence of an Event of Default hereunder) shall be paid to and applied as follows: (i) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ fees, incurred or made hereunder by Agent or Lenders; (ii) Second, to the payment to Lenders pro rata in accordance with the Advance Loan Percentages of the amounts then owing or unpaid on the Notes, including each payment scheduled to be made under Sections 1.02(b), 1.02(c2.02(b) and 1.02(d2.02(c) of this Loan Agreement; (iii) Third, to the payment of other amounts then payable to Agent or Lenders under any of the Transaction Documents; and (iv) Fourth, to the payment of the surplus, if any, to Borrower, its successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, Collateral shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders.

Application of Collateral Proceeds. The proceeds and/or avails of the Collateral, or any part thereof, and the proceeds and the avails of any remedy hereunder (as well as any other amounts of any kind held by Agent at the time of, or received by Agent after, the occurrence of an Event of Default hereunder) shall be paid to and applied as follows: (i) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ fees, incurred or made hereunder by Agent or Lenders; (ii) Second, to the payment to Lenders pro rata in accordance with the Advance Percentages of the amounts then owing or unpaid on the Notes, including each payment scheduled to be made under Sections 1.02(b), 1.02(c) and 1.02(d1.02 including any prepayment fee which would otherwise come due upon payment at such time under 1.02(e) of this Loan Agreement; (iii) Third, to the payment of other amounts then payable to Agent or Lenders under any of the Transaction Documents; and (iv) Fourth, to the payment of the surplus, if any, to Borrower, its successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders.

Application of Collateral Proceeds. The proceeds and/or avails of the Additional Collateral, or any part thereof, and the proceeds and the avails of any remedy hereunder (as well as any other amounts of any kind held by Agent Lender at the time of, or received by Agent Lender after, the occurrence of an uncured Event of Default hereunder) shall be paid to and applied as follows: (ia) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Additional Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ ' fees, incurred or made hereunder by Agent or LendersLender; (iib) Second, to the payment to Lenders pro rata in accordance with the Advance Percentages Lender of the amounts amount then owing or unpaid on the NotesNote, including each payment scheduled and in case such proceeds shall be insufficient to pay in full the whole amount so due, owing or unpaid upon the Note, then first, to the unpaid interest thereon, and second, to unpaid principal thereof; such application to be made under Sections 1.02(b)upon presentation of the Note, 1.02(c) and 1.02(d) the notation thereon of this Loan Agreementthe payment, if partially paid, or the surrender and cancellation thereof, if fully paid; (iiic) Third, to the payment of other amounts then payable to Agent or Lenders Lender under any of the Transaction Operative Documents; and (ivd) Fourth, to the payment of the surplus, if any, to Borrower, its his successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders.

Application of Collateral Proceeds. The proceeds and/or avails of the Collateral, or any part thereof, and the proceeds and the avails of any remedy hereunder (as well as any other amounts of any kind held by Agent at the time of, or received by Agent after, the occurrence of an Event of Default hereunder) shall be paid to and applied as follows: (i) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ fees, incurred or made hereunder by Agent or Lenders; (ii) Second, to the payment to Lenders pro rata in accordance with the Advance Percentages of the amounts then owing or unpaid on the Notes, including each payment scheduled to be made under Sections 1.02(b), 1.02(c) and 1.02(d) of this Loan Agreement; (iii) Third, to the payment of other amounts then payable to Agent or Lenders under any of the Transaction Documents; and (iv) Fourth, to the payment of the surplus, if any, to BorrowerBorrowers, its their successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders.

Application of Collateral Proceeds. The proceeds and/or avails of the Collateral, or any part thereof, and the proceeds and the avails of any remedy hereunder (as well as any other amounts of any kind held by Agent at the time of, or received by Agent after, the occurrence of an Event of Default hereunder) ), subject to the Subordination Agreement, shall be paid to and applied as follows: (i) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ fees, incurred or made hereunder by Agent or Lenders; (ii) Second, to the payment to Lenders pro rata in accordance with the Advance Percentages of the amounts then owing or unpaid on the Notes, including each payment scheduled to be made under Sections 1.02(b), 1.02(c) and 1.02(d) of this Loan Agreement; (iii) Third, to the payment of other amounts then payable to Agent or Lenders under any of the Transaction Documents; and (iv) Fourth, to the payment of the surplus, if any, to BorrowerBorrowers, its successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders. Each Borrower recognizes that Agent may be unable to effect a public sale of all or a part of the Pledged Shares by reason of certain prohibitions contained in the Securities Act of 1933, as amended (“Act”), so that Agent may be compelled to resort to one or more private sales to a restricted group of purchasers who will be obliged to agree, among other things, to acquire the Pledged Shares for their own account, for investment and without a view to the distribution or resale thereof. Each Borrower understands that private sales so made may be at prices and on other terms less favorable to the seller than if the Pledged Shares were sold at public sales, and agrees that Agent has no obligation to delay the sale of any of the Pledged Shares for the period of time necessary (even if Agent would agree), to register such securities for sale under the Act. Each Borrower agrees that private sales made under the foregoing circumstances shall be deemed to have been made in a commercially reasonable manner.

Application of Collateral Proceeds. The proceeds and/or avails of the Collateral, or any part pan thereof, and the proceeds and the avails of any remedy hereunder (as well as any other amounts of any kind held by Agent Lender at the time of, or received by Agent Lender after, the occurrence of an Event of Default hereunder) shall be paid to and applied as follows: (ia) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ ' fees, incurred or made hereunder by Agent or LendersLender; (iib) Second, to the payment to Lenders pro rata in accordance with the Advance Percentages Lender of the amounts amount then owing or unpaid on for Scheduled Payments and the NotesLoan Value of the Loan Amount with respect to each Loan, including and in case such proceeds shall be insufficient to pay in full the whole amount so due, owing or unpaid, then first, to the unpaid interest thereon, second, to unpaid principal thereof and third to the remaining balance of the Loan Value of the Loan Amount with respect to each payment scheduled to be made under Sections 1.02(b), 1.02(c) and 1.02(d) of this Loan AgreementLoan; (iiic) Third, to the payment of other amounts then payable to Agent or Lenders Lender under any of the Transaction Operative Documents; and (ivd) Fourth, to the payment of the surplus, if any, to Borrower, its successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders.

Application of Collateral Proceeds. The proceeds and/or avails of the Collateral, or any part thereof, and the proceeds and the avails of any remedy hereunder (as well as any other amounts of any kind held by Agent at the time of, or received by Agent after, the occurrence of an Event of Default hereunder) shall be paid to and applied as follows: (i) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ fees, incurred or made hereunder by Agent or Lenders; (ii) Second, to the payment to Lenders pro rata in accordance with the Advance Percentages of the amounts then owing or unpaid on the Notes, including each payment scheduled to be made under Sections 1.02(b), 1.02(c) and 1.02(d) of this Loan Agreement; (iii) Third, to the payment of other amounts then payable to Agent or Lenders under any of the Transaction Documents; and (iv) Fourth, to the payment of the surplus, if any, to Borrower, its successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders.

Application of Collateral Proceeds. The proceeds and/or avails of the Collateral, or any part thereof, and the proceeds and the avails of any remedy hereunder (as well as any other amounts of any kind held by Agent Lender at the time of, or received by Agent Lender after, the occurrence of an Event of Default hereunder) shall be paid to and applied as follows: (ia) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ ' fees, incurred or made hereunder by Agent or LendersLender; (iib) Second, to the payment to Lenders pro rata in accordance with the Advance Percentages Lender of the amounts amount then owing or unpaid on the NotesNote for Scheduled Payments and the Loan Value of the Loan Amount with respect to each Loan, including and in case such proceeds shall be insufficient to pay in full the whole amount so due, owing or unpaid upon the Note, then first, to the unpaid interest thereon, second, to unpaid principal thereof and third, to the remaining balance of the Loan Value of the Loan Amount with respect to each payment scheduled Loan; such application to be made under Sections 1.02(b)upon presentation of the Note, 1.02(c) and 1.02(d) the notation thereon of this Loan Agreementthe payment, if partially paid, or the surrender and cancellation thereof, if fully paid; (iiic) Third, to the payment of other amounts then payable to Agent or Lenders Lender under any of the Transaction Operative Documents; and (ivd) Fourth, to the payment of the surplus, if any, to Borrower, its successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders.

Application of Collateral Proceeds. The proceeds and/or avails of the Collateral, or any part thereof, and the proceeds and the avails of any remedy hereunder (as well as any other amounts of any kind held by Agent Lender at the time of, or received by Agent Lender after, the occurrence of an Event of Default hereunder) shall be paid to and applied as follows: (ia) FirstFIRST, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ ' fees, incurred or made hereunder by Agent or LendersLender; (iib) SecondSECOND, to the payment to Lenders pro rata in accordance with the Advance Percentages Lender of the amounts amount then owing or unpaid on the NotesLoan for Scheduled Payments and the Loan Value of the Loan Amount with respect to each Loan, including and in case such proceeds shall be insufficient to pay in full the whole amount so due, owing or unpaid upon the Loans, then FIRST, to the unpaid interest thereon, SECOND, to unpaid principal thereof and THIRD to the remaining balance of the Loan Value of the Loan Amount with respect to each payment scheduled to be made under Sections 1.02(b), 1.02(c) and 1.02(d) of this Loan AgreementLoan; (iiic) ThirdTHIRD, to the payment of other amounts then payable to Agent or Lenders Lender under any of the Transaction Operative Documents; and (ivd) FourthFOURTH, to the payment of the surplus, if any, to Borrower, its successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders.

Application of Collateral Proceeds. The proceeds and/or avails of the Collateral, or any part thereof, and the proceeds and the avails of any remedy hereunder (as well as any other amounts of any kind held by Agent Lender at the time of, or received by Agent Lender after, the occurrence of an uncured Event of Default hereunder) shall be paid to and applied as follows: (ia) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ ' fees, incurred or made hereunder by Agent or LendersLender; (iib) Second, to the payment to Lenders pro rata in accordance with the Advance Percentages Lender of the amounts amount then owing or unpaid on the NotesLoan or the Expense Reimbursement, including each payment scheduled and in case such proceeds shall be insufficient to pay in full the whole amount so due, owing or unpaid upon the Loan or the Expense Reimbursement, then first, to the unpaid interest thereon, and second, to unpaid principal thereof; such application to be made under Sections 1.02(b)upon presentation of the Loan or the Expense Reimbursement, 1.02(c) and 1.02(d) the notation thereon of this Loan Agreementthe payment, if partially paid, or the surrender and cancellation thereof, if fully paid; (iiic) Third, to the payment of other amounts then payable to Agent or Lenders Lender under any of the Transaction Operative Documents; and (ivd) Fourth, to the payment of the surplus, if any, to BorrowerBorrower or Excalibur, its as the case may be, their respective successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders.

Application of Collateral Proceeds. The proceeds and/or avails of ---------------------------------- the Collateral, or any part thereof, and the proceeds and the avails of any remedy hereunder (as well as any other amounts of any kind held by Agent Lender at the time of, or received by Agent Lender after, the occurrence of an Event of Default hereunder) shall be paid to and applied as follows: (ia) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, liability and advances, including reasonable legal expenses and attorneys’ ' fees, incurred or made hereunder by Agent or LendersLender; (iib) Second, to the payment to Lenders pro rata in accordance with the Advance Percentages Lender of the amounts amount then owing or unpaid on the NotesNote, including each payment scheduled and in case such proceeds shall be insufficient to pay in full the whole amount so due, owing or unpaid upon the Note, then first, to the unpaid interest thereon, and second, to unpaid principal thereof; such application to be made under Sections 1.02(b)upon presentation of the Note, 1.02(c) and 1.02(d) the notation thereon of this Loan Agreementthe payment, if partially paid, or the surrender and cancellation thereof, if fully paid; (iiic) Third, to the payment of other amounts then payable to Agent or Lenders Lender under any of the Transaction Operative Documents; and (ivd) Fourth, to the payment of the surplus, if any, to Borrower, its it successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders.

Application of Collateral Proceeds. The proceeds and/or avails of the Collateral, or any part thereof, and the proceeds and the avails resulting from Agent’s or Lenders’ exercise of any remedy remedies hereunder (as well as any other amounts of any kind held by Agent at the time of, or received by Agent after, the occurrence of and during the continuance of, an Event of Default hereunder) shall be paid to and applied as follows: (i) First, to the payment of reasonable costs and expenses, including all amounts expended to preserve the value of the Collateral, of foreclosure or suit, if any, and of such sale and the exercise of any other rights or remedies, and of all proper fees, expenses, indemnities, liability and advances, including reasonable legal expenses and attorneys’ fees, incurred or made hereunder by by, or owing to, Agent or Lenders; (ii) Second, to the payment to Lenders pro rata in accordance with the Advance Loan Percentages of the amounts then owing or unpaid on the Notes, including each payment scheduled to be made under Sections 1.02(b2.02(c), 1.02(c2.02(d) and 1.02(d) of this Loan Agreement2.02(e); (iii) Third, to the payment of other amounts then payable to Agent or Lenders under any of the Transaction Documents; and (iv) Fourth, to the payment of the surplus, if any, to Borrowerthe applicable Loan Party, its successors and assigns, or to whomsoever may be lawfully entitled to receive the same. In the event that, notwithstanding the foregoing, proceeds and/or avails of the Collateral, shall be received by a Lender in excess of its ratable share, then the portion of such payment or distribution in excess of such Lender’s ratable share shall be received by such Lender in trust for and shall be promptly paid over to the other Lenders ratably for application to the payments of amounts due to the other Lenders. For the avoidance of doubt, notwithstanding any other provision of any Loan Document, no amount received directly or indirectly from any Loan Party that is not a Qualified ECP Guarantor shall be applied directly or indirectly by the Agent or otherwise to the payment of any Excluded Swap Obligations and Obligations arising under secured cash management agreements and secured Swap Obligations shall be excluded from the application described above in clauses (i) - (iv) if the Agent has not received written notice thereof, together with such supporting documentation from the applicable bank product provider of such cash management agreements or Swap Obligations, as the case may be, as may be reasonably necessary to determine the amount of the Obligations owed thereunder.