Post-Default Allocation. Notwithstanding anything in any Loan Document to the contrary, while an Event of Default is continuing, monies to be applied to the Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated as follows (subject to the terms of the Intercreditor Agreement): (a) with respect to monies, payments, Property or Collateral of or from any U.S. Domiciled Obligors: US-DOCS\123034949.14 (i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent, to the extent owing by any U.S. Domiciled Obligor; (ii) second, to all amounts owing to Agent and U.S. Swingline Lender on U.S. Swingline Loans, U.S. Protective Advances, and U.S. Revolver Loans and participations that a Defaulting Lender has failed to settle or fund; (iii) third, to all amounts owing to each U.S. Issuing Bank on U.S. LC Obligations, ratably among each U.S. Issuing Bank in proportion to the respective amounts described in this clause payable to it; (iv) fourth, to all U.S. Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing to U.S. Lenders (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors); (v) fifth, to all U.S. Facility Obligations (other than Secured Bank Product Obligations) constituting interest (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors); (vi) sixth, to Cash Collateralize all U.S. LC Obligations; (vii) seventh, to all U.S. Revolver Loans, and to Secured Bank Product Obligations arising under Hedging Agreements (including Cash Collateralization thereof) owing by the U.S. Domiciled Obligors (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors) up to the amount of the U.S. Availability Reserves existing therefor; (viii) eighth, to all other Secured Bank Product Obligations owing by the U.S. Domiciled Obligors (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors); (ix) ninth, to all remaining U.S. Facility Obligations (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors); and (x) tenth, to be applied in accordance with clause (b) below, to the extent there are insufficient funds for the Full Payment of all Obligations owing by the Canadian Domiciled Obligors; (b) with respect to monies, payments, Property or Collateral of or from any Canadian Domiciled Obligors: (i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent, to the extent owing by any Canadian Domiciled Obligor; (ii) second, to all amounts owing to Agent and Canadian Swingline Lender on Canadian Swingline Loans, Canadian Protective Advances, and Canadian Revolver Loans and participations that a Defaulting Lender has failed to settle or fund; (iii) third, to all amounts owing to each Canadian Issuing Bank on Canadian LC Obligations, ratably among each Canadian Issuing Bank in proportion to the respective amounts described in this clause payable to it; US-DOCS\123034949.14 (iv) fourth, to all Canadian Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing to Canadian Lenders;
Appears in 1 contract
Post-Default Allocation. Notwithstanding anything in any Loan Document to the contrary, while but subject to the Intercreditor Agreement, during an Event of Default is continuingDefault, monies to be applied to the Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated as follows (subject to the terms of the Intercreditor Agreement):follows:
(a) with respect to monies, payments, Property or Collateral of or from any U.S. the Canadian Domiciled Obligors: US-DOCS\123034949.14, together with any allocations pursuant to subclause (x) of any other clause of this Section 5.5.2:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to AgentAgent or any Security Trustee, to the extent owing by any U.S. of the Canadian Domiciled ObligorObligors;
(ii) second, to all amounts owing to Canadian Swingline Lender or Agent on Canadian Swingline Loans, Canadian Protective Advances, and Canadian Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to Canadian Issuing Bank on Canadian LC Obligations;
(iv) fourth, to all Canadian Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing by any of the Canadian Domiciled Obligors to Lenders (exclusive of any UK Facility Obligations which are guaranteed by the Canadian Domiciled Obligors);
(v) fifth, to all Canadian Facility Obligations (other than Secured Bank Product Obligations) constituting interest owing by any of the Canadian Domiciled Obligors (exclusive of any UK Facility Obligations which are guaranteed by the Canadian Domiciled Obligors);
(vi) sixth, to Cash Collateralize all Canadian LC Obligations;
(vii) seventh, to all Canadian Revolver Loans, and to Secured Bank Product Obligations of Canadian Domiciled Obligors arising under Hedging Agreements (including Cash Collateralization thereof, but excluding any such Secured Bank Product Obligation which is a UK Facility Obligation guaranteed by any of the Canadian Domiciled Obligors) up to the amount of Canadian Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations of any of the Canadian Domiciled Obligors (but excluding any such Secured Bank Product Obligation which is a UK Facility Obligation guaranteed by any of the Canadian Domiciled Obligors);
(ix) ninth, to all other Canadian Facility Obligations (exclusive of any UK Facility Obligations which are guaranteed by any of the Canadian Domiciled Obligors); and Obligations.
(x) tenth, to be applied ratably to all other Foreign Facility
(b) with respect to monies, payments, Property or Collateral of or from the UK Domiciled Obligors, together with any allocations pursuant to subclause (x) of any other clause of this Section 5.5.2:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent or any Security Trustee, to the extent owing by any of the UK Domiciled Obligors;
(ii) second, to all amounts owing to UK Swingline Lender or Agent on UK Swingline Loans, UK Protective Advances, and UK Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to UK Issuing Bank on UK LC Obligations;
(iv) fourth, to all UK Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing by any of the UK Domiciled Obligors to Lenders (exclusive of any Canadian Facility Obligations which are guaranteed by the UK Domiciled Obligors);
(v) fifth, to all UK Facility Obligations (other than Secured Bank Product Obligations) constituting interest owing by any of the UK Domiciled Obligors (exclusive of any Canadian Facility Obligations which are guaranteed by the UK Domiciled Obligors);
(vi) sixth, to Cash Collateralize all UK LC Obligations;
(vii) seventh, to all UK Revolver Loans, and to Secured Bank Product Obligations of UK Domiciled Obligors arising under Hedging Agreements (including Cash Collateralization thereof, but excluding any such Secured Bank Product Obligation which is a Canadian Facility Obligation guaranteed by any of the UK Domiciled Obligors) up to the amount of UK Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations of any of the UK Domiciled Obligors (but excluding any such Secured Bank Product Obligation which is a Canadian Facility Obligation guaranteed by any of the UK Domiciled Obligors);
(ix) ninth, to all other UK Facility Obligations (exclusive of any Canadian Facility Obligations which are guaranteed by any of the UK Domiciled Obligors); and
(x) tenth, to be applied ratably to all other Foreign Facility Obligations.
(c) with respect to monies, payments, Property or Collateral of or from the U.S. Obligors, together with any allocations pursuant to subclause (x) of any other clause of this Section 5.5.2:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent or any Security Trustee, to the extent owing by any of the U.S. Obligors;
(ii) second, to all amounts owing to U.S. Swingline Lender or Agent on U.S. Swingline Loans, U.S. Protective Advances, and U.S. Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to each U.S. Issuing Bank on U.S. LC Obligations, ratably among each U.S. Issuing Bank in proportion to the respective amounts described in this clause payable to it;
(iv) fourth, to all U.S. Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing by any of the U.S. Obligors to U.S. Lenders (exclusive of any Canadian Foreign Facility Obligations which are guaranteed by the U.S. Domiciled Obligors);
(v) fifth, to all U.S. Facility Obligations (other than Secured Bank Product Obligations) constituting interest owing by any of the U.S. Obligors (exclusive of any Canadian Foreign Facility Obligations which are guaranteed by the U.S. Domiciled Obligors);
(vi) sixth, to Cash Collateralize all U.S. LC Obligations;
(vii) seventh, to all U.S. Revolver Loans, and to Secured Bank Product Obligations of U.S. Obligors arising under Hedging Agreements (including Cash Collateralization thereof) owing , but excluding any such Secured Bank Product Obligation which is a Foreign Facility Obligation guaranteed by any of the U.S. Domiciled Obligors (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors) up to the amount of the U.S. Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations owing by of any of the U.S. Domiciled Obligors (exclusive of but excluding any Canadian such Secured Bank Product Obligation which is a Foreign Facility Obligations which are Obligation guaranteed by any of the U.S. Domiciled Obligors);
(ix) ninth, to all remaining other U.S. Facility Obligations (exclusive of any Canadian Foreign Facility Obligations which are guaranteed by any of the U.S. Domiciled Obligors); and
(x) tenth, to be applied in accordance with clause (b) below, ratably to the extent there are insufficient funds for the Full Payment of all Obligations owing by the Canadian Domiciled Obligors;other Obligations.
(bd) with respect to monies, payments, Property or Collateral of or from any the Foreign Obligors that are neither Canadian Domiciled Obligors nor UK Domiciled Obligors, in each case to be applied ratably:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to AgentAgent or any Security Trustee, to the extent owing by any Canadian Domiciled ObligorForeign Obligors;
(ii) second, (A) to all amounts owing to Agent and Canadian Swingline Lender or Agent on Canadian Swingline Loans, Canadian Protective Advances, Canadian Revolver Loans and Canadian participations that a Defaulting Lender has failed to settle or fund and (B) to all amounts owing to UK Swingline Lender or Agent on UK Swingline Loans, UK Protective Advances, UK Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to each Canadian Issuing Bank on Canadian LC Obligations, ratably among each Canadian Obligations and all amounts owing to UK Issuing Bank in proportion to the respective amounts described in this clause payable to it; US-DOCS\123034949.14 on UK LC Obligations;
(iv) fourth, to all Canadian Foreign Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing by any of the Foreign Obligors to Canadian Lenders;
(v) fifth, to all Foreign Facility Obligations (other than Secured Bank Product Obligations) constituting interest owing by any of the Foreign Obligors;
(vi) sixth, to Cash Collateralize all Canadian LC Obligations and all UK LC Obligations;
(vii) seventh, to all Canadian Revolver Loans, all UK Revolver Loans and to Secured Bank Product Obligations of Foreign Obligors arising under Hedging Agreements (including Cash Collateralization thereof) up to the amount of Canadian Availability Reserves or UK Availability Reserves, as applicable, existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations of any of the Foreign Obligors; and
(ix) ninth, to be applied ratably to all other Foreign Facility Obligations. Amounts shall be applied to payment of each category of Obligations set forth within subsections (a) through (d) above, as applicable, only after Full Payment of amounts payable from time to time under all preceding categories set forth within such subsection. If amounts are insufficient to satisfy a category, they shall be paid ratably among outstanding Obligations in the category. Monies and proceeds obtained from an Obligor shall not be applied to its Excluded Swap Obligations, but appropriate adjustments shall be made with respect to amounts obtained from other Obligors to preserve the allocations in any applicable category. Agent shall have no obligation to calculate the amount of any Secured Bank Product Obligation and may request a reasonably detailed calculation thereof from a Secured Bank Product Provider. If the provider fails to deliver the calculation within five days following request, Agent may assume the amount is zero. The allocations set forth in this Section are solely to determine the rights and priorities among Secured Parties, and may be changed by agreement of the affected Secured Parties, without the consent of any Obligor (so long as such change could not reasonably be expected to result in material adverse tax consequences to an Obligor or a Subsidiary of an Obligor under Section 956 of the Code). This Section is not for the benefit of or enforceable by any Obligor, and each Borrower irrevocably waives the right to direct the application of any payments or Collateral proceeds subject to this Section. Any amount applied to the U.S. Revolver Loans shall be applied first to the U.S. Revolver Loans that are not FILO Loans until repaid in full, and then to FILO Loans.
Appears in 1 contract
Samples: Loan Agreement (Horizon Global Corp)
Post-Default Allocation. Notwithstanding anything in any Loan Document to the contrary, while during an Event of Default is continuingDefault, monies to be applied to the Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated as follows (subject to the terms of the Intercreditor Agreement):follows:
(a) with respect to monies, payments, Property or Collateral of or from any U.S. Domiciled Obligors: US-DOCS\123034949.14:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent, to the extent owing by any U.S. Domiciled Obligor;
(ii) second, to all amounts owing to Agent and U.S. Swingline Lender on U.S. Swingline Loans, Agent on U.S. Protective Advances, and Agent on U.S. Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to each any U.S. Issuing Bank on U.S. LC Obligations, ratably among each U.S. Issuing Bank in proportion to the respective amounts described in this clause payable to it;
(iv) fourth, to all U.S. Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing to U.S. Lenders (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors);
(v) fifth, to all U.S. Facility Obligations (other than Secured Bank Product Obligations) constituting interest (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors);
(vi) sixth, to Cash Collateralize all U.S. LC Obligations;
(vii) seventh, to all U.S. Revolver Loans, and to Secured Bank Product Obligations arising under Hedging Agreements (including Cash Collateralization thereof) owing by the U.S. Domiciled Obligors (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors) up to the amount of the U.S. Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations owing by the U.S. Domiciled Obligors (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors);
(ix) ninth, to all remaining U.S. Facility Obligations (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors); and
(x) tenth, to be applied in accordance with clause (b) below, to the extent there are insufficient funds for the Full Payment of all Obligations owing by the Canadian Domiciled Obligors;.
(b) with respect to monies, payments, Property or Collateral of or from any Canadian Domiciled ObligorsObligor, together with any allocations pursuant to subclause (x) of clause (a) above:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent, to the extent owing by any Canadian Domiciled Obligor;
(ii) second, to all amounts owing to Agent and Canadian Swingline Lender on Canadian Swingline Loans, Agent on Canadian Protective Advances, and Agent on Canadian Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to each Canadian Issuing Bank on Canadian LC Obligations, ratably among each Canadian Issuing Bank in proportion to the respective amounts described in this clause payable to it; US-DOCS\123034949.14 ;
(iv) fourth, to all Canadian Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing to Canadian Lenders;
(v) fifth, to all Canadian Facility Obligations (other than Secured Bank Product Obligations) constituting interest;
(vi) sixth, to Cash Collateralize all Canadian LC Obligations;
(vii) seventh, to all Canadian Revolver Loans, and to Secured Bank Product Obligations arising under Hedging Agreements (including Cash Collateralization thereof) owing by Canadian Domiciled Obligors up to the amount of Canadian Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations owing by Canadian Domiciled Obligors; and
(ix) ninth, to all remaining Canadian Facility Obligations. Amounts shall be applied to payment of each category of Obligations set forth within subsections (a) and (b) above only after Full Payment of amounts payable from time to time under all preceding categories. If amounts are insufficient to satisfy a category, they shall be paid ratably among outstanding Obligations in the category. Monies and proceeds obtained from an Obligor shall not be applied to its Excluded Swap Obligations, but appropriate adjustments shall be made with respect to amounts obtained from other Obligors to preserve the allocations in any applicable category. Agent shall have no obligation to calculate the amount of any Secured Bank Product Obligation and may request a reasonably detailed calculation thereof from a Secured Bank Product Provider. If the Secured Bank Product Provider fails to deliver the calculation within five Business Days following request, Agent may assume the amount is zero. The allocations set forth in this Section are solely to determine the rights and priorities among Secured Parties as among themselves, and any allocation within subsection (a) and (b) of the proceeds of the realization of Collateral, and may be changed by agreement of the affected Secured Parties, without the consent of any Obligor. This Section is not for the benefit of or enforceable by any Obligor and each Obligor irrevocably waives the right to direct the application of any payments or Collateral proceeds subject to this Section.
Appears in 1 contract
Samples: Loan, Security and Guaranty Agreement (Willbros Group, Inc.\NEW\)
Post-Default Allocation. Notwithstanding anything in any Loan Document to the contrary, while but subject to the Intercreditor Agreement, during an Event of Default is continuingDefault, monies to be applied to the Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated as follows (subject to the terms of the Intercreditor Agreement):follows:
(a) with respect to monies, payments, Property or Collateral of or from any U.S. the Canadian Domiciled Obligors: US-DOCS\123034949.14, together with any allocations pursuant to subclause (x) of any other clause of this Section 5.5.2:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to AgentAgent or any Security Trustee, to the extent owing by any U.S. ofwith respect to the Canadian Domiciled ObligorObligorsFacility Obligations;
(ii) second, to all amounts owing to Canadian Swingline Lender or Agent on Canadian Swingline Loans, Canadian Protective Advances, and Canadian Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to Canadian Issuing Bank on Canadian LC Obligations;
(iv) fourth, to all Canadian Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing by any of the Canadian Domiciled Obligors to Lenders (exclusive of any UK Facility Obligations which are guaranteed by the Canadian Domiciled Obligors)to any Secured Party;
(v) fifth, to all Canadian Facility Obligations (other than Secured Bank Product Obligations) constituting interest owing by any of the Canadian Domiciled Obligors (exclusive of any UK Facility Obligations which are guaranteed by the Canadian Domiciled Obligors)to any Secured Party;
(vi) sixth, to Cash Collateralize all Canadian LC Obligations;
(vii) seventh, to all Canadian Revolver Loans, and to Secured Bank Product Obligations of Canadian Domiciled Obligors arising under Hedging Agreements (including Cash Collateralization thereof, but excluding any such Secured Bank Product Obligation which is a UK Facility Obligation guaranteed by any of the Canadian Domiciled Obligors) up to the amount of Canadian Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations of any of the Canadian Domiciled Obligors (but excluding any such Secured Bank Product Obligation which is a UK Facility Obligation guaranteed by any of the Canadian Domiciled Obligors);
(ix) ninth, to all other Canadian Facility Obligations (exclusive of any UK Facility Obligations which are guaranteed by any of the Canadian Domiciled Obligors); and
(x) tenth, to be applied ratably to all other Foreign Facility Obligations as determined by Agent in its Permitted Discretion.
(b) with respect to monies, payments, Property or Collateral of or from the UK Domiciled Obligors and/or Mexican Domiciled Obligors, together with any allocations pursuant to subclause (x) of any other clause of this Section 5.5.2:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent or any Security Trustee, with respect to the extent owing by any of the UK Domiciled ObligorsUK Facility Obligations;
(ii) second, to all amounts owing to UK Swingline Lender or Agent on UK Swingline Loans, UK Protective Advances, and UK Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to UK Issuing Bank on UK LC Obligations;
(iv) fourth, to all UK Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing by any of the UK Domiciled Obligors to Lenders (exclusive of any Canadian Facility Obligations which are guaranteed by the UK Domiciled Obligors)to any Secured Party;
(v) fifth, to all UK Facility Obligations (other than Secured Bank Product Obligations) constituting interest owing by any of the UK Domiciled Obligors (exclusive of any Canadian Facility Obligations which are guaranteed by the UK Domiciled Obligors)to any Secured Party;
(vi) sixth, to Cash Collateralize all UK LC Obligations;
(vii) seventh, to all UK Revolver Loans, and to Secured Bank Product Obligations of UK Domiciled Obligors arising under Hedging Agreements (including Cash Collateralization thereof, but excluding any such Secured Bank Product Obligation which is a Canadian Facility Obligation guaranteed by any of the UK Domiciled Obligors) up to the amount of UK Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations of any of the UK Domiciled Obligors (but excluding any such Secured Bank Product Obligation which is a Canadian Facility Obligation guaranteed by any of the UK Domiciled Obligors);
(ix) ninth, to all other UK Facility Obligations (exclusive of (exclusive of any Canadian Facility Obligations which are guaranteed by any of the UK Domiciled Obligors); and
(x) tenth, to be applied ratably to all other Foreign Foreign Facility Obligations as determined by Agent in its Permitted Discretion.
(c) with respect to monies, payments, Property or Collateral of or from the U.S. Domiciled Obligors, together with any allocations pursuant to subclause (x) of any other clause of this Section 5.5.2:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent or any Security Trustee, with respect to the extent owing by any of the U.S. ObligorsU.S. Facility Obligations;
(ii) second, to all amounts owing to U.S. Swingline Lender or Agent on U.S. Swingline Loans, U.S. Protective Advances, and U.S. Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to each U.S. Issuing Bank on U.S. LC Obligations, ratably among each U.S. Issuing Bank in proportion to the respective amounts described in this clause payable to it;
(iv) fourth, to all U.S. Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing by any of the U.S. Obligors to U.S. Lenders (exclusive of any Canadian Foreign Facility Obligations which are guaranteed by the U.S. Domiciled Obligors)Obligors)to any Secured Party;
(v) fifth, to all U.S. Facility Obligations (other than Secured Bank Product Obligations) constituting interest owing by any of the U.S. Obligors (exclusive of any Canadian Foreign Facility Obligations which are guaranteed by the U.S. Domiciled Obligors)Obligors)to any Secured Party;
(vi) sixth, to Cash Collateralize all U.S. LC Obligations;
(vii) seventh, to all U.S. Revolver Loans, and to Secured Bank Product Obligations of U.S. Obligors arising under Hedging Agreements (including Cash Collateralization thereof) owing , but excluding any such Secured Bank Product Obligation which is a Foreign Facility Obligation guaranteed by any of the U.S. Domiciled Obligors (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors) up to the amount of the U.S. Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations owing by of any of the U.S. Domiciled Obligors (exclusive of but excluding any Canadian such Secured Bank Product Obligation which is a Foreign Facility Obligations which are Obligation guaranteed by any of the U.S. Domiciled Obligors);
(ix) ninth, to all remaining other U.S. Facility Obligations (exclusive of any Canadian Foreign Facility Obligations which are guaranteed by any of the U.S. Domiciled Obligors); and
(x) tenth, to be applied ratably to all other Obligations as determined by Agent in accordance with clause (b) below, to the extent there are insufficient funds for the Full Payment of all Obligations owing by the Canadian Domiciled Obligors;its Permitted Discretion.
(bd) with respect to monies, payments, Property or Collateral of or from any the Foreign Obligors that are neithernot Canadian Domiciled Obligors nor, Mexican Domiciled Obligors or UK Domiciled Obligors, in each case to be applied ratably:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to AgentAgent or any Security Trustee, to the extent owing by any Canadian Domiciled ObligorForeign Obligorsowing with respect to all Obligations;
(ii) second, (A) to all amounts owing to U.S. Swingline Lender or Agent on U.S. Swingline Loans, U.S. Protective Advances, and U.S. Revolver Loans and participations that a Defaulting Lender has failed to settle or fund, (B) to all amounts owing to Canadian Swingline Lender or Agent on Canadian Swingline Loans, Canadian Protective Advances, Canadian Revolver Loans and Canadian participations that a Defaulting Lender has failed to settle or fund and (BC) to all amounts owing to UK Swingline Lender or Agent on UK Swingline Loans, UK Protective Advances, UK Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to each U.S. Issuing Bank on U.S. LC Obligations, all amounts owing to Canadian Issuing Bank on Canadian LC Obligations, ratably among each Canadian Obligations and all amounts owing to UK Issuing Bank in proportion to the respective amounts described in this clause payable to it; US-DOCS\123034949.14 on UK LC Obligations;
(iv) fourth, to all Canadian Foreign Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing by any of the Foreign Obligors to Canadian Lenders;
(v) fifth, to all Foreign Facility Obligations (other than Secured Bank Product Obligations) constituting interest owing by any of the Foreign Obligors;
(vi) sixth, to Cash Collateralize all U.S. LC Obligations, Canadian LC Obligations and all UK LC Obligations;
(vii) seventh, to all U.S. Revolver Loans, all Canadian Revolver Loans, all UK Revolver Loans and to Secured Bank Product Obligations of Foreign Obligors arising under Hedging Agreements (including Cash Collateralization thereof) up to the amount of U.S. Availability Reserves, Canadian Availability Reserves or UK Availability Reserves, as applicable, existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations of any of the Foreign Obligors; and
(ix) ninth, to be applied ratably to all other Foreign Facility Obligations as determined by Agent in its Permitted Discretion. Amounts shall be applied to payment of each category of Obligations set forth within subsections (a) through (d) above, as applicable, only after Full Payment of amounts payable from time to time under all preceding categories set forth within such subsection. If amounts are insufficient to satisfy a category, they shall be paid ratably among outstanding Obligations in the category. Monies and proceeds obtained from an Obligor shall not be applied to its Excluded Swap Obligations, but appropriate adjustments shall be made with respect to amounts obtained from other Obligors to preserve the allocations in any applicable category. Agent shall have no obligation to calculate the amount of any Secured Bank Product Obligation and may request a reasonably detailed calculation thereof from a Secured Bank Product Provider. If the provider fails to deliver the calculation within five days following request, Agent may assume the amount is zero. The allocations set forth in this Section are solely to determine the rights and priorities among Secured Parties, and may be changed by agreement of the affected Secured Parties, without the consent of any Obligor (so long as such change could not reasonably be expected to result in material adverse tax consequences to an Obligor or a Subsidiary of an Obligor under Section 956 of the Code). This Section is not for the benefit of or enforceable by any Obligor, and each Borrower irrevocably waives the right to direct the application of any payments or Collateral proceeds subject to this Section. Any amount applied to the U.S. Revolver Loans shall be applied first to the U.S. Revolver Loans that are not FILO Loans until repaid in full, and then to FILO Loans.
Appears in 1 contract
Samples: Loan Agreement (Horizon Global Corp)
Post-Default Allocation. Notwithstanding anything in any Loan Document to the contrary, while an Event of Default is continuing, monies to be applied to the Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated as follows (subject to the terms of the Intercreditor Agreement):
(a) with respect to monies, payments, Property or Collateral of or from any U.S. Domiciled Obligors: US-DOCS\123034949.14:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent, to the extent owing by any U.S. Domiciled Obligor;
(ii) second, to all amounts owing to Agent and U.S. Swingline Lender on U.S. Swingline Loans, U.S. Protective Advances, and U.S. Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to each U.S. Issuing Bank on U.S. LC Obligations, ratably among each U.S. Issuing Bank in proportion to the respective amounts described in this clause payable to it;
(iv) fourth, to all U.S. Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing to U.S. Lenders (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors);
(v) fifth, to all U.S. Facility Obligations (other than Secured Bank Product Obligations) constituting interest (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors);
(vi) sixth, to Cash Collateralize all U.S. LC Obligations;
(vii) seventh, to all U.S. Revolver Loans, and to Secured Bank Product Obligations arising under Hedging Agreements (including Cash Collateralization thereof) owing by the U.S. Domiciled Obligors (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors) up to the amount of the U.S. Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations owing by the U.S. Domiciled Obligors (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors);
(ix) ninth, to all remaining U.S. Facility Obligations (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors); and
(x) tenth, to be applied in accordance with clause (b) below, to the extent there are insufficient funds for the Full Payment of all Obligations owing by the Canadian Domiciled Obligors;
(b) with respect to monies, payments, Property or Collateral of or from any Canadian Domiciled Obligors:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent, to the extent owing by any Canadian Domiciled Obligor;
(ii) second, to all amounts owing to Agent and Canadian Swingline Lender on Canadian Swingline Loans, Canadian Protective Advances, and Canadian Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to each Canadian Issuing Bank on Canadian LC Obligations, ratably among each Canadian Issuing Bank in proportion to the respective amounts described in this clause payable to it; US-DOCS\123034949.14 ;
(iv) fourth, to all Canadian Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing to Canadian Lenders;
(v) fifth, to all Canadian Facility Obligations (other than Secured Bank Product Obligations) constituting interest;
(vi) sixth, to Cash Collateralize all Canadian LC Obligations;
(vii) seventh, to all Canadian Revolver Loans, and to Secured Bank Product Obligations arising under Hedging Agreements (including Cash Collateralization thereof) owing by the Canadian Domiciled Obligors up to the amount of the Canadian Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations owing by the Canadian Domiciled Obligors; and
(ix) ninth, to all remaining Canadian Facility Obligations; Amounts shall be applied to payment of each category of Obligations set forth within clauses (a) and (b) above only after Full Payment of amounts payable from time to time under all preceding categories. If amounts are insufficient to satisfy a category, they shall be paid ratably among outstanding Obligations in the category. Monies and proceeds obtained from an Obligor shall not be applied to its Excluded Swap Obligations, but appropriate adjustments shall be made with respect to amounts obtained from other Obligors to preserve the allocations in any applicable category. Agent shall have no obligation to calculate the amount of any Secured Bank Product Obligation and may request a reasonably detailed calculation thereof from a Secured Bank Product Provider. If the Secured Bank Product Provider fails to deliver the calculation within five days following request, Agent may assume the amount is zero. The allocations set forth in this Section are solely to determine the rights and priorities among Secured Parties, and may be changed by agreement of the affected Secured Parties as among themselves, and any allocation within clauses (a) and (b) above, without the consent of any Obligor. This Section is not for the benefit of or enforceable by any Obligor, and each Obligor irrevocably waives the right to direct the application of any payments or Collateral proceeds subject to this Section.
Appears in 1 contract
Post-Default Allocation. Notwithstanding anything in any Loan Document to the contrary, while but subject to the Intercreditor Agreement, during an Event of Default is continuingDefault, monies to be applied to the Obligations, whether arising from payments by Obligors, realization on Collateral, setoff or otherwise, shall be allocated as follows (subject to the terms of the Intercreditor Agreement):follows:
(a) with respect to monies, payments, Property or Collateral of or from any U.S. the Canadian Domiciled Obligors: US-DOCS\123034949.14, together with any allocations pursuant to subclause (x) of any other clause of this Section 5.5.2:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to AgentAgent or any Security Trustee, to the extent owing by any U.S. of the Canadian Domiciled ObligorObligors;
(ii) second, to all amounts owing to Canadian Swingline Lender or Agent on Canadian Swingline Loans, Canadian Protective Advances, and Canadian Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to Canadian Issuing Bank on Canadian LC Obligations;
(iv) fourth, to all Canadian Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing by any of the Canadian Domiciled Obligors to Lenders (exclusive of any UK Facility Obligations which are guaranteed by the Canadian Domiciled Obligors);
(v) fifth, to all Canadian Facility Obligations (other than Secured Bank Product Obligations) constituting interest owing by any of the Canadian Domiciled Obligors (exclusive of any UK Facility Obligations which are guaranteed by the Canadian Domiciled Obligors);
(vi) sixth, to Cash Collateralize all Canadian LC Obligations;
(vii) seventh, to all Canadian Revolver Loans, and to Secured Bank Product Obligations of Canadian Domiciled Obligors arising under Hedging Agreements (including Cash Collateralization thereof, but excluding any such Secured Bank Product Obligation which is a UK Facility Obligation guaranteed by any of the Canadian Domiciled Obligors) up to the amount of Canadian Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations of any of the Canadian Domiciled Obligors (but excluding any such Secured Bank Product Obligation which is a UK Facility Obligation guaranteed by any of the Canadian Domiciled Obligors);
(ix) ninth, to all other Canadian Facility Obligations (exclusive of any UK Facility Obligations which are guaranteed by any of the Canadian Domiciled Obligors); and
(x) tenth, to be applied ratably to all other Foreign Facility Obligations.
(b) with respect to monies, payments, Property or Collateral of or from the UK Domiciled Obligors, together with any allocations pursuant to subclause (x) of any other clause of this Section 5.5.2:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent or any Security Trustee, to the extent owing by any of the UK Domiciled Obligors;
(ii) second, to all amounts owing to UK Swingline Lender or Agent on UK Swingline Loans, UK Protective Advances, and UK Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to UK Issuing Bank on UK LC Obligations;
(iv) fourth, to all UK Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing by any of the UK Domiciled Obligors to Lenders (exclusive of any Canadian Facility Obligations which are guaranteed by the UK Domiciled Obligors);
(v) fifth, to all UK Facility Obligations (other than Secured Bank Product Obligations) constituting interest owing by any of the UK Domiciled Obligors (exclusive of any Canadian Facility Obligations which are guaranteed by the UK Domiciled Obligors);
(vi) sixth, to Cash Collateralize all UK LC Obligations;
(vii) seventh, to all UK Revolver Loans, and to Secured Bank Product Obligations of UK Domiciled Obligors arising under Hedging Agreements (including Cash Collateralization thereof, but excluding any such Secured Bank Product Obligation which is a Canadian Facility Obligation guaranteed by any of the UK Domiciled Obligors) up to the amount of UK Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations of any of the UK Domiciled Obligors (but excluding any such Secured Bank Product Obligation which is a Canadian Facility Obligation guaranteed by any of the UK Domiciled Obligors);
(ix) ninth, to all other UK Facility Obligations (exclusive of any Canadian Facility Obligations which are guaranteed by any of the UK Domiciled Obligors); and
(x) tenth, to be applied ratably to all other Foreign Facility Obligations.
(c) with respect to monies, payments, Property or Collateral of or from the U.S. Obligors, together with any allocations pursuant to subclause (x) of any other clause of this Section 5.5.2:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to Agent or any Security Trustee, to the extent owing by any of the U.S. Obligors;
(ii) second, to all amounts owing to U.S. Swingline Lender or Agent on U.S. Swingline Loans, U.S. Protective Advances, and U.S. Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to each U.S. Issuing Bank on U.S. LC Obligations, ratably among each U.S. Issuing Bank in proportion to the respective amounts described in this clause payable to it;
(iv) fourth, to all U.S. Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing by any of the U.S. Obligors to U.S. Lenders (exclusive of any Canadian Foreign Facility Obligations which are guaranteed by the U.S. Domiciled Obligors);
(v) fifth, to all U.S. Facility Obligations (other than Secured Bank Product Obligations) constituting interest owing by any of the U.S. Obligors (exclusive of any Canadian Foreign Facility Obligations which are guaranteed by the U.S. Domiciled Obligors);
(vi) sixth, to Cash Collateralize all U.S. LC Obligations;
(vii) seventh, to all U.S. Revolver Loans, and to Secured Bank Product Obligations of U.S. Obligors arising under Hedging Agreements (including Cash Collateralization thereof) owing , but excluding any such Secured Bank Product Obligation which is a Foreign Facility Obligation guaranteed by any of the U.S. Domiciled Obligors (exclusive of any Canadian Facility Obligations which are guaranteed by the U.S. Domiciled Obligors) up to the amount of the U.S. Availability Reserves existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations owing by of any of the U.S. Domiciled Obligors (exclusive of but excluding any Canadian such Secured Bank Product Obligation which is a Foreign Facility Obligations which are Obligation guaranteed by any of the U.S. Domiciled Obligors);
(ix) ninth, to all remaining other U.S. Facility Obligations (exclusive of any Canadian Foreign Facility Obligations which are guaranteed by any of the U.S. Domiciled Obligors); and
(x) tenth, to be applied in accordance with clause (b) below, ratably to the extent there are insufficient funds for the Full Payment of all Obligations owing by the Canadian Domiciled Obligors;other Obligations.
(bd) with respect to monies, payments, Property or Collateral of or from any the Foreign Obligors that are neither Canadian Domiciled Obligors nor UK Domiciled Obligors, in each case to be applied ratably:
(i) first, to all fees, indemnification, costs and expenses, including Extraordinary Expenses, owing to AgentAgent or any Security Trustee, to the extent owing by any Canadian Domiciled ObligorForeign Obligors;
(ii) second, (A) to all amounts owing to Agent and Canadian Swingline Lender or Agent on Canadian Swingline Loans, Canadian Protective Advances, Canadian Revolver Loans and Canadian participations that a Defaulting Lender has failed to settle or fund and (B) to all amounts owing to UK Swingline Lender or Agent on UK Swingline Loans, UK Protective Advances, UK Revolver Loans and participations that a Defaulting Lender has failed to settle or fund;
(iii) third, to all amounts owing to each Canadian Issuing Bank on Canadian LC Obligations, ratably among each Canadian Obligations and all amounts owing to UK Issuing Bank in proportion to the respective amounts described in this clause payable to it; US-DOCS\123034949.14 on UK LC Obligations;
(iv) fourth, to all Canadian Foreign Facility Obligations (other than Secured Bank Product Obligations) constituting fees, indemnification, costs or expenses owing by any of the Foreign Obligors to Canadian Lenders;
(v) fifth, to all Foreign Facility Obligations (other than Secured Bank Product Obligations) constituting interest owing by any of the Foreign Obligors;
(vi) sixth, to Cash Collateralize all Canadian LC Obligations and all UK LC Obligations;
(vii) seventh, to all Canadian Revolver Loans, all UK Revolver Loans and to Secured Bank Product Obligations of Foreign Obligors arising under Hedging Agreements (including Cash Collateralization thereof) up to the amount of Canadian Availability Reserves or UK Availability Reserves, as applicable, existing therefor;
(viii) eighth, to all other Secured Bank Product Obligations of any of the Foreign Obligors; and
(ix) ninth, to be applied ratably to all other Foreign Facility Obligations. Amounts shall be applied to payment of each category of Obligations set forth within subsections (a) through (d) above, as applicable, only after Full Payment of amounts payable from time to time under all preceding categories set forth within such subsection. If amounts are insufficient to satisfy a category, they shall be paid ratably among outstanding Obligations in the category. Monies and proceeds obtained from an Obligor shall not be applied to its Excluded Swap Obligations, but appropriate adjustments shall be made with respect to amounts obtained from other Obligors to preserve the allocations in any applicable category. Agent shall have no obligation to calculate the amount of any Secured Bank Product Obligation and may request a reasonably detailed calculation thereof from a Secured Bank Product Provider. If the provider fails to deliver the calculation within five days following request, Agent may assume the amount is zero. The allocations set forth in this Section are solely to determine the rights and priorities among Secured Parties, and may be changed by agreement of the affected Secured Parties, without the consent of any Obligor (so long as such change could not reasonably be expected to result in material adverse tax consequences to an Obligor or a Subsidiary of an Obligor under Section 956 of the Code). This Section is not for the benefit of or enforceable by any Obligor, and each Borrower irrevocably waives the right to direct the application of any payments or Collateral proceeds subject to this Section. Any amount applied to the U.S. Revolver Loans shall be applied first to the U.S. Revolver Loans that are not FILO Loans until repaid in full, and then to FILO Loans.
Appears in 1 contract
Samples: Loan Agreement (Horizon Global Corp)
