Common use of Application of Collateral; Application of Liquidation Proceeds Clause in Contracts

Application of Collateral; Application of Liquidation Proceeds. The Administrative Agent, with or without proceeding with sale or foreclosure or demanding (or having the Designated Swing Line Lender demand) payment of the Obligations, Swing Line Obligations or Letter of Credit Obligations shall have the right, without notice, at any time, to appropriate and apply to any Obligations, Swing Line Obligations or Letter of Credit Obligations any and all Collateral of a Borrower in the possession of the Administrative Agent, the Banks, any Designated Swing Line Lender or Designated Letter of Credit Issuer. All monies received by the Administrative Agent or any Bank, Designated Swing Line Lender or Designated Letter of Credit Issuer from the exercise of remedies under this Agreement or the other Loan Documents shall, unless otherwise required by the terms of the other Loan Documents or by applicable law, be applied as follows: (i) First, to the payment of all reasonable expenses (to the extent not otherwise paid by the Borrowers) incurred by the Administrative Agent and the Banks in connection with the exercise of such remedies, including, without limitation, all reasonable costs and expenses of collection, reasonable documented attorneys' fees, court costs and any foreclosure expenses; (ii) Second, to the payment pro rata of interest then accrued (x) in the case of a Foreign Borrower, on the outstanding Obligations of such Foreign Borrower, and (y) in the case of a Domestic Borrower, on the outstanding Obligations of all Borrowers; (iii) Third, to the payment pro rata of any fees then accrued and payable to the Administrative Agent or any Bank under this Agreement in respect 95 105 of the Loans, provided, however, that in no case shall proceeds of Collateral of any Foreign Subsidiary or monies received from any Foreign Subsidiary be applied to any Obligations of any other Borrower; (iv) Fourth, to the payment pro rata of: (A) the principal balance then owing on the outstanding Term Loans, (B) the principal balance then owing on the outstanding Revolving Credit Loans or (the amount of any participations in lieu thereof) and (C) the Designated Hedge Obligations then due under Designated Hedge Agreements to Designated Hedge Creditors of the Borrowers or any Subsidiary, subject to confirmation by the Administrative Agent of any calculations of termination or other payment amounts being made in accordance with normal industry practice, provided, however, that in no case shall any proceeds of Collateral of any Foreign Borrower or Foreign Subsidiary or monies received from any Foreign Borrower or Foreign Subsidiary be applied to any Obligations, Swing Line Obligations or Letter of Credit Obligations or Designated Hedge Obligations of any other Borrower; (v) Fifth, to the payment pro rata of all other amounts owed by the Borrowers to the Administrative Agent or any Bank, Designated Swing Line Lender or Designated Letter of Credit Issuer under this Agreement or any other Loan Document, and to any counterparties under Designated Hedge Agreements of the Borrowers and the Subsidiaries thereof, and if such proceeds are insufficient to pay such amounts in full, to the payment of such amounts pro rata, provided, however, that in no case shall proceeds of Collateral of any Foreign Subsidiary or monies received from any Foreign Subsidiary be applied to any Obligations of any other Borrower; and (vi) Finally, any remaining surplus after all of the Obligations and Designated Hedge Obligations have been paid in full, to the Borrowers or to whomsoever shall be lawfully entitled thereto.

Application of Collateral; Application of Liquidation Proceeds. The Administrative Agent, with or without proceeding with sale or foreclosure or demanding (or having the Designated Swing Line Lender demand) payment of the Obligations, Swing Line Obligations or Letter of Credit Obligations shall have the rightshall, without notice, at any timetime during the continuance of an Event of Default, to appropriate and apply to any Obligations, Swing Line the Obligations or Letter of Credit Obligations any and all Collateral of a Borrower in the possession of the Administrative Agent, the Banks, any Designated Swing Line Lender or Designated Letter of Credit Issuer. All monies payments received by the Administrative Agent or and all monies and Proceeds received the Administrative Agent with respect to any Bank, Designated Swing Line Lender or Designated Letter of Credit Issuer from the exercise of remedies under this Agreement or the other Loan Documents shall, unless otherwise required by the terms of the other Loan Documents or by applicable law, be applied and all Collateral as follows: (i) First, to the payment of all reasonable expenses (to the extent not otherwise paid by the Borrowers) incurred by the Administrative Agent and the Banks Lenders in connection with the exercise of such remedies, including, without limitation, all reasonable costs and expenses of collection, reasonable documented attorneys' ’ fees, court costs and any foreclosure expenses; (ii) Second, to the payment pro rata of interest any fees then accrued (x) in and payable to the case of a Foreign Borrower, on the outstanding Obligations of such Foreign Borrower, and (y) in the case of a Domestic Borrower, on the outstanding Obligations of all BorrowersAdministrative Agent or any Lender under this Agreement; (iii) Third, to the payment pro rata of any fees interest then accrued and payable to on the Administrative Agent or any Bank under this Agreement in respect 95 105 outstanding Revolving Credit Loans of the Loans, provided, however, that in no case shall proceeds of Collateral of any Foreign Subsidiary or monies received from any Foreign Subsidiary be applied to any Obligations of any other BorrowerBorrowers; (iv) Fourth, to the payment pro rata of: (A) the principal balance then owing on the outstanding Term Loans, (B) of the principal balance then owing on the outstanding Revolving Credit Loans or (with the amount payments on the outstanding Revolving Credit Loans being pro rata to the Lenders on the basis of any participations in lieu their Pro Rata Share thereof) and (C) the Designated Hedge Obligations then due under Designated Hedge Agreements to Designated Hedge Creditors of the Borrowers or any Subsidiary, subject to confirmation by the Administrative Agent of any calculations of termination or other payment amounts being made in accordance with normal industry practice, provided, however, that in no case shall any proceeds of Collateral of any Foreign Borrower or Foreign Subsidiary or monies received from any Foreign Borrower or Foreign Subsidiary be applied to any Obligations, Swing Line Obligations or Letter of Credit Obligations or Designated Hedge Obligations of any other Borrower; (v) Fifth, as cash collateral security against the aggregate undrawn amount of any Letter of Credit outstanding for the account of the Borrowers and any other Letter of Credit Obligations outstanding of the Borrowers; (vi) Sixth, to the payment pro rata of of: (i) all other amounts owed by the Borrowers to the Administrative Agent or Agent, any BankLender, Designated Swing Line Lender or Designated Letter of Credit the LC Issuer under this Agreement or any other Loan Document, (ii) all amounts owing to the Designated Hedge Creditor as Designated Hedge Obligations and (iii) all amounts owing to any counterparties under Designated Hedge Agreements of Lender in connection with cash management services provided by such Lender to the Borrowers and the Subsidiaries thereoftheir Subsidiaries; provided, and however, if such proceeds monies and Proceeds are insufficient to pay such amounts in full, to the payment of such amounts pro rata, provided, however, that in no case shall proceeds of Collateral of any Foreign Subsidiary or monies received from any Foreign Subsidiary be applied to any Obligations of any other Borrower; and (vivii) FinallyLast, any remaining surplus after all of the Obligations and Designated Hedge Obligations have been paid in full, to the Borrowers or to whomsoever shall be lawfully entitled thereto.

Application of Collateral; Application of Liquidation Proceeds. The Administrative AgentIf an Event of Default shall occur and be continuing, the Lender, with or without proceeding with sale or foreclosure or demanding (or having the Designated Swing Line Lender demand) payment of the Obligations, Swing Line Obligations or Letter of Credit Obligations shall have the rightshall, without notice, at any time, to appropriate and apply to any Obligations, Swing Line the Obligations or Letter of Credit Obligations all monies received with respect to any and all Collateral of a Borrower the Borrowers in the possession of the Administrative Agent, the Banks, any Designated Swing Line Lender or Designated Letter of Credit Issuer. All monies received by the Administrative Agent or any Bank, Designated Swing Line Lender or Designated Letter of Credit Issuer from the exercise of remedies under this Agreement or the other Loan Documents shall, unless otherwise required by the terms of the other Loan Documents or by applicable law, be applied as follows: (i) First, to the payment of all reasonable expenses (to the extent not otherwise paid by the Borrowers) incurred by the Administrative Agent and the Banks Lender in connection with the exercise of such remedies, including, without limitation, all reasonable costs and expenses of collection, reasonable documented attorneys' ’ fees, court costs and any foreclosure expenses;, including without 38 CORE/0503816.0513/125525037.8 (ii) Second, to the payment pro rata of interest any fees then accrued (x) in and payable to the case of a Foreign Borrower, on the outstanding Obligations of such Foreign Borrower, and (y) in the case of a Domestic Borrower, on the outstanding Obligations of all BorrowersLender under this Agreement; (iii) Third, to the payment pro rata of any fees interest then accrued and payable to on the Administrative Agent or any Bank under this Agreement in respect 95 105 of the Loans, provided, however, that in no case shall proceeds of Collateral of any Foreign Subsidiary or monies received from any Foreign Subsidiary be applied to any Obligations of any other BorrowerLoan; (iv) Fourth, to the payment pro rata of: (A) of the principal balance then owing on the Loan to the Lender determined based on such outstanding Term Loans, (B) the principal balance then owing on the outstanding Revolving Credit Loans or (the amount of any participations in lieu thereof) and (C) the Designated Hedge Obligations then due under Designated Hedge Agreements to Designated Hedge Creditors of the Borrowers or any Subsidiary, subject to confirmation by the Administrative Agent of any calculations of termination or other payment amounts being made in accordance with normal industry practice, provided, however, that in no case shall any proceeds of Collateral of any Foreign Borrower or Foreign Subsidiary or monies received from any Foreign Borrower or Foreign Subsidiary be applied to any Obligations, Swing Line Obligations or Letter of Credit Obligations or Designated Hedge Obligations of any other Borrowersuch deficiency; (v) Fifth, to the payment pro rata of all other amounts owed owing to Lender in connection with cash management services provided by the Borrowers Lender to the Administrative Agent or any Bank, Designated Swing Line Lender or Designated Letter of Credit Issuer under this Agreement or any other Loan Document, and to any counterparties under Designated Hedge Agreements of the Borrowers and the Subsidiaries thereof, and if such proceeds are insufficient to pay such amounts in full, to the payment of such amounts pro rata, provided, however, that in no case shall proceeds of Collateral of any Foreign Subsidiary or monies received from any Foreign Subsidiary be applied to any Obligations of any other Borrowertheir Subsidiaries; and (vi) FinallyLast, any remaining surplus after all of the Obligations and Designated Hedge Obligations have been paid in full, to the Borrowers or to whomsoever shall be lawfully entitled thereto. . If any Event of Default shall occur which is continuing, Lender and each Affiliate thereof shall have the right (in addition to such other rights as it may have by operation of Law or otherwise) to the extent permitted by applicable law, but subject to Section 13.8 of this Agreement, at any time to set off against and to appropriate to and apply toward the payment of the Obligations, and all other liabilities under this Agreement and the other Loan Documents then owing to it (and any participation purchased or to be purchased pursuant to Section 13.8 below) whether or not the same shall then have matured, any and all deposits (general or special) and any other Indebtedness at any time held or owing by Lender or each Affiliate thereof (including branches and agencies thereof wherever located) to or for the credit or account of the Borrowers, all without notice to or demand upon the Borrowers or any other Person, all such notices and demands being hereby expressly waived. . Without limitation of any authorization granted to the Lender hereunder, each Borrower also hereby authorizes the Lender, upon the occurrence of an Event of Default which is continuing, to execute, in connection with the exercise by the Lender of its remedies hereunder, any endorsements, assignments or other instruments of conveyance or transfer with respect to the Collateral. . Each Borrower hereby grants to the Lender, for the benefit of itself and the Lender: (a) a non-exclusive, royalty-free license or other right to use, without charge, all of such Borrower’s Intellectual Property (including all rights of use of any name or trade secret) as it pertains to the Collateral, in manufacturing, advertising for sale and selling any Collateral and (b) to the extent permitted thereunder, all of such Borrower’s rights under all licenses and all franchise agreements, which shall inure to the Lender for the benefit of itself and the Lender without charge. . The above-stated remedies are not intended to be exhaustive and the full or partial exercise of any of such remedies shall not preclude the full or partial exercise of any other remedy by the Lender under this Agreement, under any Loan Document, or at equity or under law. . The Lender shall hereby have the right, and each Borrower hereby irrevocably makes, constitutes, and appoints the Lender (and all officers, employees, or agents designated by the Lender) as its true and lawful attorney-in-fact and agent, with full power of substitution, from time to time following the occurrence of an Event of Default which is continuing and without assent by such Borrower: (a) to effectuate, in such Borrower’s name, such Borrower’s obligations under this Agreement, (b) in such Borrower’s or Lender’s name: (i) to demand payment of the Accounts of such Borrower, (ii) to enforce CORE/0503816.0513/125525037.8 payment of such Accounts, by legal proceedings or otherwise, (iii) to exercise all of such Borrower’s rights and remedies with respect to the collection of such Accounts and any other Collateral, (iv) to settle, adjust, compromise, extend, or renew such Accounts, (v) to settle, adjust, or compromise any legal proceedings brought to collect such Accounts, (vi) if permitted by applicable Law, to sell or assign such Accounts and other Collateral, (vii) to take control, in any manner, of any item of payment or Proceeds relating to any Collateral, (viii) to prepare, file, and sign such Borrower’s name on a proof of claim in a bankruptcy against any Account Debtor or on any notice of Lien, assignment, or satisfaction of Lien in connection with such Accounts, (ix) to do all acts and things reasonably necessary, in the Lender’s good faith discretion, to fulfill such Borrower’s obligations under this Agreement, (x) to endorse the name of such Borrower upon any of the items of payment or Proceeds relating to any Collateral and apply the same to the Obligations, (xi) to endorse the name of such Borrower upon any Chattel Paper, document, Instrument, invoice, freight xxxx, xxxx of lading, or similar document or agreement relating to such Accounts, such Borrower’s Inventory and any other Collateral, (xii) to use such Borrower’s stationery and sign the name of such Borrower to verifications of such Accounts and notices thereof to Account Debtors, (xiii) to use the information recorded on or contained in any data processing equipment and computer hardware and software relating to such Accounts, such Inventory, and any other Collateral to which such Borrower has access, (xiv) to make and adjust claims under such policies of insurance insuring the Collateral, receive and endorse the name of such Borrower on any check, draft, instrument or other item of payment for the proceeds of such policies, and make all determinations with respect to such policies, and (xvi) to notify post office authorities to change the address for delivery of such Borrower’s mail to an address designated by the Lender, receive and open all mail addressed to such Borrower, and, after removing all Collections, forward the mail to such Borrower, (c) to pay or discharge taxes or Liens levied against the Collateral; (d) to take all action necessary to grant the Lender sole access to any Lockbox or Deposit Account of such Borrower, (e) contact Account Debtors to pay any Collections to the Lockbox, (f) upon notice to the Borrower Representative, to commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral and to enforce any other right in respect of any Collateral; (g) upon notice to the Borrower Representative, to defend any suit, action or proceeding brought against the Borrower with respect to any Collateral; (h) upon notice to the Borrower Representative to settle, compromise or adjust any such suit, action or proceeding; (i) to sell, transfer, pledge, or make any agreement with respect to the Collateral; and (j) to do, at the Lender’s option and such Borrower’s expense, at any time, or from time to time, all acts and things which the Lender reasonably deems necessary to protect, preserve or realize upon the Collateral. Each Borrower hereby ratifies all that said attorney shall lawfully do or cause to be done by virtue hereof. This power of attorney is a power coupled with an interest and shall be irrevocable. The expenses of the Lender incurred in connection with such the exercise of such power of attorney, together with interest thereon at a the rate then applicable hereunder the Loan, shall be payable by the Borrowers to the Lender on demand. . Upon the occurrence of any Event of Default hereunder or under any other Loan Document, then and in any such event, Lender may (but shall in no event be required to) make any payment or perform any term, provision, condition, covenant or agreement required of Borrowers, and/or cure any such Event of Default. In such event, Lender shall promptly notify the Borrower Representative of the actions taken or amounts expended by Lender. Any amounts expended by Lender in so doing, or in exercising its rights and remedies hereunder, shall constitute advances hereunder, the payment of which is additional indebtedness secured by the Loan Documents due and owing at Lender’s demand, within interest at the Past-Due Rate from the date of disbursement thereof until fully paid. No further direction or authorization from Borrowers shall be necessary for such disbursements, and all such disbursements shall satisfy pro tanto the obligations of Lender with respect to the funds so disbursed. The execution of this Agreement by CORE/0503816.0513/125525037.8 Borrowers shall and hereby does constitute an irrevocable direction and authorization to Lender so disburse such funds and make such performance.

Application of Collateral; Application of Liquidation Proceeds. The Subject to Section 4.1(d) herein with respect to Collections, the Administrative Agent, with or without proceeding with sale or foreclosure or demanding (or having the Designated Swing Line Lender demand) payment of the Obligations, Swing Line Obligations or Letter of Credit Obligations shall have the rightshall, without notice, at any time, to appropriate and apply to any Obligations, Swing Line the Obligations or Letter of Credit Obligations all monies received with respect to any and all Collateral of a Borrower the Borrowers in the possession of the Administrative Agent, the Banks, any Designated Swing Line a Lender or Designated Letter of Credit Issuer. All monies received by the Administrative Agent or any Bank, Designated Swing Line Lender or Designated Letter of Credit LC Issuer from the exercise of remedies under this Agreement or the other Loan Documents shall, unless otherwise required by the terms of the other Loan Documents or by applicable law, be applied as follows: (i) First, to the payment of all reasonable expenses (to the extent not otherwise paid by the Borrowers) incurred by the Administrative Agent and the Banks Lenders in connection with the exercise of such remedies, including, without limitation, all reasonable costs and expenses of collection, reasonable documented attorneys' fees, court costs and any foreclosure expenses; (ii) Second, to the payment pro rata of interest any fees then accrued (x) in and payable to the case of a Foreign Borrower, on the outstanding Obligations of such Foreign Borrower, and (y) in the case of a Domestic Borrower, on the outstanding Obligations of all BorrowersAdministrative Agent or any Lender under this Agreement; (iii) Third, to the payment pro rata of any fees interest then accrued and payable to on the Administrative Agent or any Bank under this Agreement in respect 95 105 outstanding Revolving Credit Advances of the Loans, provided, however, that in no case shall proceeds of Collateral of any Foreign Subsidiary or monies received from any Foreign Subsidiary be applied to any Obligations of any other BorrowerBorrowers; (iv) Fourth, to the payment pro rata of: (A) the principal balance then owing on the outstanding Term Loans, (B) of the principal balance then owing on the outstanding Revolving Credit Loans or Advances as follows: (A) first, to Revolving Credit Advances comprised of Permitted Special Advances, (B) second, to the amount of any participations in lieu thereof) Revolving Credit Advances pro rata to the Lenders determined based on such outstanding and (C) the Designated Hedge Obligations then due under Designated Hedge Agreements to Designated Hedge Creditors of the Borrowers or any Subsidiary, subject to confirmation by the Administrative Agent of any calculations of termination or other payment amounts being made in accordance with normal industry practice, provided, however, that in no case shall any proceeds of Collateral of any Foreign Borrower or Foreign Subsidiary or monies received from any Foreign Borrower or Foreign Subsidiary be applied to any Obligations, Swing Line Obligations or Letter of Credit Obligations or Designated Hedge Obligations of any other Borrowersuch deficiency; (v) Fifth, as cash collateral security against the aggregate undrawn amount of any Letter of Credit outstanding for the account of the Borrowers and any other Letter of Credit Obligations (whether then or thereafter anticipated to be outstanding) of the Borrowers; (vi) Sixth, to the payment pro rata of of: (i) all other amounts owed by the Borrowers to the Administrative Agent or Agent, any BankLender, Designated Swing Line Lender or Designated Letter of Credit the LC Issuer under this Agreement or any other Loan Document, (ii) all amounts owing to the Designated Hedge Creditor as Designated Hedge Obligations and (iii) all amounts owing to any counterparties under Designated Hedge Agreements of Lender in connection with cash management services provided by such Lender to the Borrowers and the Subsidiaries thereoftheir Subsidiaries; provided, and however, if such proceeds monies and Proceeds are insufficient to pay such amounts in full, to the payment of such amounts pro rata, provided, however, that in no case shall proceeds of Collateral of any Foreign Subsidiary or monies received from any Foreign Subsidiary be applied to any Obligations of any other Borrower; and (vivii) FinallyLast, any remaining surplus after all of the Obligations and Designated Hedge Obligations have been paid in full, to the Borrowers or to whomsoever shall be lawfully entitled thereto.