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Common use of Application of Moneys Clause in Contracts

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee Agent shall have the right at any time to apply moneys held by it in the Guarantee Collection Account to the payment of due and unpaid Subordinated Guarantee Agent Fees. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent and each Administrative Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved pursuant to this Section 6.2(a) shall continue to be held by the Subordinated Guarantee Agent until the earlier of (i) application in accordance with this Section 6.2(a) and (ii) such time as such contingent indemnity or reimbursement claim has been extinguished, to the extent that such amounts reserved exceed any remaining asserted contingent indemnity or reimbursement claims as determined by the Subordinated Guarantee Agent in its reasonable discretion.

Appears in 5 contracts

Samples: Credit Agreement (Dex Media, Inc.), Credit Agreement (Dex Media, Inc.), Loan Agreement (Supermedia Inc.)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee The Shared Collateral Agent shall have the right (pursuant to subsection 4.7) at any time to apply moneys held by it in the Guarantee Collection Account Shared Collateral Accounts to the payment of due and unpaid Subordinated Guarantee Shared Collateral Agent FeesFees without any requirement that such applications be made ratably from such accounts. The Subordinated Guarantee Shared Collateral Agent shall provide written notice to the Ultimate Parent and each Administrative Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Shared Collateral Agent may reserve from deposits in the Guarantee Collection Account Shared Collateral Accounts an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Shared Collateral Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 4 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Shared Collateral Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit other Shared Collateral Secured Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Shared Collateral Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(asubsection 3.4(a) shall survive the termination of the other provisions of this Intercreditor Agreement and the resignation or removal of the Subordinated Guarantee Shared Collateral Agent hereunder and, notwithstanding any such event, any amounts reserved pursuant to this Section 6.2(asubsection 3.4(a) shall continue to be held by the Subordinated Guarantee Shared Collateral Agent until the earlier of (i) application in accordance with this Section 6.2(asubsection 3.4(a) and (ii) such time as such contingent indemnity or reimbursement claim has been extinguished, to the extent that such amounts reserved exceed any remaining asserted contingent indemnity or reimbursement claims as determined by the Subordinated Guarantee Shared Collateral Agent in its reasonable discretion. (b) All moneys held by the Shared Collateral Agent in the Shared Collateral Accounts while an Enforcement Event is in effect shall, to the extent available for distribution (it being understood that the Shared Collateral Agent may liquidate investments prior to maturity in order to make a distribution pursuant to this subsection 3.4(b)), be distributed (subject to the provisions of subsections 3.5, 3.7 and 5.2(b)) by the Shared Collateral Agent on each Distribution Date during which an Enforcement Event is in effect in the following order of priority (with such distributions being made by the Shared Collateral Agent to the respective Administrative Agent for the Shared Collateral Secured Parties entitled thereto as provided in subsection 3.4(d), and each such Administrative Agent shall be responsible for ensuring that amounts distributed to it are distributed to the Shared Collateral Secured Parties represented by it in the order of priority set forth below):

Appears in 5 contracts

Samples: Credit Agreement (Dex Media, Inc.), Credit Agreement (Dex Media, Inc.), Loan Agreement (Supermedia Inc.)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee The Collateral Agent shall have the right at any time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Collateral Agent Fees. The Subordinated Guarantee . (b) All remaining moneys held by the Collateral Agent shall provide written notice in the Collateral Account or received by the Collateral Agent with respect to the Ultimate Parent and each Administrative Collateral shall, to the extent available for distribution (it being understood that the Collateral Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid may liquidate investments prior to maturity in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a) shall continue to 7.4), be held distributed by the Subordinated Guarantee Collateral Agent on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent to the respective representatives for the Secured Parties as provided in Section 7.4(d), and each such representative shall be responsible for insuring that amounts distributed to it are distributed to its Secured Parties in the order of priority set forth below): First: to the Collateral Agent for any unpaid Collateral Agent Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses described in clause First above, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: to the Secured Parties, the amount then due and owing and remaining unpaid in respect of the Obligations, pro rata among the Secured Parties to which such Obligations are then due and owing based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the earlier extent not then due and payable) in full; Fourth (this clause being applicable only if an Event of Default shall have occurred and be continuing): to the Secured Parties, the amount of unpaid principal, interest, fees, charges, costs and expenses in respect of the Obligations, pro rata among the Secured Parties holding such Obligations based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the extent not then due and payable) in full; and Fifth: any balance remaining after the Obligations shall have been paid or cash collateralized in full, no Existing Letters of Credit shall be outstanding and any Incremental Revolving Commitments shall have been terminated shall be paid over to the Borrower or to whomsoever may be lawfully entitled to receive the same. (c) The term “unpaid” as used in clauses Third and Fourth of Section 7.4(b) refers: (i) application in accordance the absence of a bankruptcy proceeding with this Section 6.2(a) and respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and (ii) such time during the pendency of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts allowed (within the meaning of Title 11 of the United States Code entitled “Bankruptcy”) by the bankruptcy court in respect of the Obligations as such a basis for distribution (including estimated amounts, if any, allowed in respect of contingent indemnity or reimbursement claim has been extinguishedclaims), to the extent that such amounts reserved exceed any remaining asserted contingent indemnity or reimbursement claims as determined by prior distributions have not been made in respect thereof. (d) The Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations to the Subordinated Guarantee Agent Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in its reasonable discretionaccordance with the provisions of the Credit Agreement.

Appears in 2 contracts

Samples: Credit Agreement (DEX ONE Corp), Credit Agreement (DEX ONE Corp)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee Agent The Collateral Trustee shall have the right (pursuant to subsection 4.7) at any time and from time to time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Agent Fees. The Subordinated Guarantee Agent shall provide written notice Trustee Fees in priority to all other amounts that may be due and owing to the Ultimate Parent and each Administrative Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation Studios from time to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 time. (upon the liquidation of such claims), which reserved amount (xb) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved pursuant to this Section 6.2(a) shall continue to be All moneys held by the Subordinated Guarantee Agent until Collateral Trustee in the earlier Collateral Account while a Notice of (i) application Acceleration is in accordance with this Section 6.2(a) and (ii) such time as such contingent indemnity or reimbursement claim has been extinguishedeffect shall, to the extent available for distribution (it being understood that such amounts reserved exceed any remaining asserted contingent indemnity or reimbursement claims as determined the Collateral Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this subsection 3.4(b)), be distributed (subject to the provisions of subsection 3.5) by the Subordinated Guarantee Agent Collateral Trustee on each Distribution Date (with such distributions being made by the Collateral Trustee to the Secured Parties entitled thereto as provided in subsection 3.4(c), and the Collateral Trustee shall be responsible for insuring that amounts distributed to the Secured Parties are distributed on a Pro Rata basis). (c) The Collateral Trustee shall make all payments and distributions under this subsection 3.4 on account of the Secured Obligations to the Secured Parties on a Pro Rata basis. (d) Unless the Collateral Trustee shall have received written instructions from the Studios given by Majority Approval as to the times at which any amounts are to be distributed, all distributions shall be made at such times and as promptly as the Collateral Trustee shall in its good faith and discretion determine to be reasonable discretionand practicable under the circumstances, but in accordance with the terms of this Collateral Trust Agreement including the required Distribution Date. The Collateral Trustee shall at all times have the right to request distribution instructions, including as to the time of such distribution from the Studios given by Majority Approval.

Appears in 2 contracts

Samples: Collateral Trust Agreement (Blockbuster Inc), Collateral Trust Agreement (Blockbuster Inc)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee The Collateral Agent shall have the right at any time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Collateral Agent Fees. The Subordinated Guarantee . (b) All remaining moneys held by the Collateral Agent shall provide written notice in the Collateral Account received by the Collateral Agent with respect to the Ultimate Parent and each Administrative Restricted Collateral shall, to the extent available for distribution (it being understood that the Collateral Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid may liquidate investments prior to maturity in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a3.4), be distributed (subject to the provisions of Section 3.5) by the Collateral Agent on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent as provided in Section 3.4(e), and the applicable Administrative Agent shall continue be responsible for insuring that amounts distributed to it are distributed to its Banks in the order of priority set forth below): First: to the Collateral Agent for any unpaid Collateral Agent Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: to the Secured Parties holding Restricted Collateral Obligations, amounts equal to all Restricted Collateral Obligations then owing to them (other than amounts described in clause Fourth below), whether or not then due and payable, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date; Fourth: to the Secured Parties holding Restricted Collateral Obligations, amounts equal to all costs and expenses of such Secured Parties and their representatives which constitute Restricted Collateral Obligations and are due and payable under the relevant instruments evidencing or agreements governing the Restricted Collateral Obligations as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date; and Fifth: any surplus then remaining shall be paid to the Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. (c) All remaining moneys held by the Subordinated Guarantee Collateral Agent until in the earlier of (i) application in accordance Collateral Account received by the Collateral Agent with this Section 6.2(a) and (ii) such time as such contingent indemnity or reimbursement claim has been extinguishedrespect to the Unrestricted Collateral shall, to the extent available for distribution (it being understood that the Collateral Agent may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 3.4), be distributed (subject to the provisions of Section 3.5) by the Collateral Agent on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent as provided in Section 3.4(e), and the applicable Administrative Agent shall be responsible for insuring that amounts distributed to it are distributed to its Banks in the order of priority set forth below): First: to the Collateral Agent for any unpaid Collateral Agent Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts reserved exceed in full, then ratably (without priority of any remaining asserted contingent indemnity or reimbursement claims as determined one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the Subordinated Guarantee respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in its reasonable discretionfull, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: to the Secured Parties, amounts equal to all Obligations then owing to them (other than amounts described in clause Fourth below), whether or not then due and payable, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to the Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date; Fourth: to the Secured Parties, amounts equal to all costs and expenses of the Secured Parties and their representatives which constitute Obligations and are due and payable under the relevant instruments evidencing or agreements governing such Obligations as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to the Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date; and Fifth: any surplus then remaining shall be paid to the Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

Appears in 2 contracts

Samples: Collateral Sharing Agreement (Lucent Technologies Inc), Collateral Sharing Agreement (Lucent Technologies Inc)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee Agent The Trustee shall have the right at any time to apply moneys of Navistar Financial held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Agent Trustee’s Fees. The Subordinated Guarantee Agent shall provide written notice Subject to Section 6.05, all remaining moneys held by the Trustee in the Collateral Account while a Notice of Acceleration is in effect shall, to the Ultimate Parent and each Administrative Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid extent available for distribution (it being understood that the Trustee may liquidate investments prior to maturity in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a) shall continue to Section), be held distributed by the Subordinated Guarantee Agent until Trustee on dates fixed by the earlier Trustee (the first of which shall be within 90 days after the Trustee receives a Notice of Acceleration and the remainder of which shall be monthly thereafter on the day of the month corresponding to the first Distribution Date (or, if there is no such corresponding day, the last day of such month) for such distribution (individually a “Distribution Date” and collectively “Distribution Dates”) in the following order of priority: First: to any Secured Party which has theretofore advanced or paid any unpaid Trustee’s Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party prior to such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any unpaid Trustee’s Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party prior to such Distribution Date; Third: to the Secured Parties entitled thereto, an amount equal to their respective Catch-up Amounts (as defined in subsection (c) below), if any, and, if such moneys shall be insufficient to pay such Catch-up Amounts in full, then to such Secured Parties ratably in proportion to their respective Catch-up Amounts; Fourth: to the Secured Parties entitled thereto in an amount equal to the unpaid principal of, premium, if any, and interest on the Secured Obligations (other than Financial Services Obligations) then outstanding whether or not then due and payable, and all unpaid amounts then due and payable by Navistar Financial in respect of the Financial Services Obligations, and all unpaid fees and expenses of any Indenture Trustee under any Debt Indenture, and, if such moneys shall be insufficient to pay such principal, premium, interest and other amounts in full, then ratably (without priority of any one over any other, except in accordance with applicable subordination provisions) to the Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date; Fifth: to the Secured Parties, amounts equal to all other sums then due and payable in respect of the Secured Obligations, including, without limitation, the costs and expenses of the Secured Parties and their representatives which are due and payable under the relevant Secured Instruments as of such Distribution Date and, if such moneys shall be insufficient to pay such sums in full, then ratably to the Secured Parties in proportion to such sums; and Sixth: any surplus then remaining shall be paid to Navistar Financial or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. Notwithstanding the foregoing, no amounts received from Navistar Financial shall be applied to Excluded Swap Obligations of Navistar Financial. (b) The term “unpaid” as used in clause Fourth of subsection (a) above and in subsection (c) below, with respect to any Secured Obligations, refers: (i) application in accordance the absence of a bankruptcy proceeding with this Section 6.2(a) and respect to Navistar Financial, to all amounts of such Secured Obligations outstanding as of a Distribution Date, and (ii) during the pendency of a bankruptcy proceeding with respect to Navistar Financial, to all amounts which have not been disallowed by the bankruptcy court in respect of such time Secured Obligations as such a basis for distribution (including estimated amounts, if any, allowed in respect of contingent indemnity or reimbursement claim has been extinguishedclaims), to the extent that prior distributions (whether actually distributed or set aside pursuant to Section 6.05) have not been made in respect thereof. (c) Catch-up Amounts shall be calculated on any Distribution Date before giving effect to any distribution on such Distribution Date pursuant to clauses Fourth, Fifth and Sixth of subsection (a) above. The term “Catch-up Amount” means, with respect to any Secured Instrument, the amount, if any, required to be distributed to the Secured Party or Parties in respect of Secured Obligations thereunder, so that, immediately after such distribution, the ratio of (i) all amounts reserved exceed theretofore distributed hereunder to such Secured Party or Parties in respect of such Secured Instrument to (ii) the unpaid amount then due and payable to such Secured Party or Parties thereunder plus the amount of all distributions theretofore made hereunder in respect thereof, is equal to the highest ratio of (x) all amounts theretofore distributed hereunder in respect of any remaining asserted contingent indemnity other Secured Instrument to (y) the unpaid amount then due and payable to the Secured Party or reimbursement claims as determined by Parties with respect thereto plus the Subordinated Guarantee Agent amount of all distributions theretofore made hereunder in its reasonable discretionrespect thereof.

Appears in 1 contract

Samples: Security, Pledge and Trust Agreement (Navistar International Corp)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee Agent The Collateral Trustee shall have the right (pursuant to Section 4.07) at any time to apply moneys held by it in the Guarantee Collection Trust Collateral Account to the payment of due and unpaid Subordinated Guarantee Agent Collateral Trustee Fees. The Subordinated Guarantee Agent shall provide written notice . (b) All remaining moneys held by the Collateral Trustee in the Trust Collateral Account or received by the Collateral Trustee while an Applicable Notice of Event of Default is in effect shall, to the Ultimate Parent and each Administrative Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid extent available for distribution (it being understood that the Collateral Trustee may liquidate investments prior to maturity in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a3.04), be distributed (subject to the provisions of Section 3.05) shall continue to be held by the Subordinated Guarantee Agent until Collateral Trustee on each Distribution Date in the earlier following order of priority: First: to the Collateral Trustee for any unpaid Collateral Trustee Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Trustee Fees (including any such fees that may constitute administrative expenses allowable under Section 503(b) of the Bankruptcy Code), an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Collateral Trustee Fees other than such administrative expenses, described in clause First above, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: subject to Section 6.16, to the First Priority Representatives in an amount equal to the unpaid amount of the First Priority Obligations then outstanding, whether or not then due and payable (including without limitation amounts required to cash collateralize undrawn letters of credit and other contingent obligations that are First Priority Obligations); Fourth: to the Second Priority Representative in an amount equal to the unpaid amount of the Second Priority Obligations then outstanding whether or not then due and payable; and Fifth: any surplus then remaining shall be paid to the applicable Loan Parties or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. (c) The term ‘‘unpaid” as used in clauses Third, Fourth and Fifth of Section 3.04(b) refers: (i) application in accordance the absence of a bankruptcy proceeding with this Section 6.2(a) and respect to the relevant Loan Party(s), to all amounts of the applicable Secured Obligations outstanding as of a Distribution Date, and (ii) such time during the pendency of a bankruptcy proceeding with respect to the relevant Loan Party(s), to all amounts allowed by the bankruptcy court in respect of the applicable Secured Obligations as such a basis for distribution (including estimated amounts, if any, allowed in respect of contingent indemnity or reimbursement claim has been extinguishedclaims), to the extent that prior distributions have not been made in respect thereof. (d) Any payments or distributions received by any Representative under this Section 3.04 shall be for re-distribution by such Representative in accordance with the provisions of the applicable Secured Instrument (subject to the ABL Intercreditor Agreement and any applicable PP&E Intercreditor Agreement). Notwithstanding the foregoing, amounts reserved exceed on deposit in any remaining asserted contingent indemnity or reimbursement claims as determined by Letter of Credit Account shall be applied first, to reimburse each Fronting Bank for any then drawn but unreimbursed amounts in respect of the Subordinated Guarantee Agent related Letters of Credit and, second, to cash collateralize any then outstanding related Letters of Credit in its reasonable discretionaccordance with the provisions of the applicable First Priority Document. Any amounts in excess of those required for such purposes shall be applied in accordance with the otherwise applicable provisions of this Section 3.04.

Appears in 1 contract

Samples: Collateral Trust Agreement (Tenneco Inc)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee The Collateral Agent shall have the right at any time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Collateral Agent Fees. The Subordinated Guarantee . (b) All remaining moneys held by the Collateral Agent shall provide written notice in the Collateral Account received by the Collateral Agent with respect to the Ultimate Parent Restricted Collateral (other than (i) the Capital Stock of Agere and each Administrative Agent (ii) in the event that Agere or any of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation its Subsidiaries is required to make any disbursements from enter into the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement and Collateral Agreement pursuant to Section 7 (upon 5.11 of any of the liquidation Credit Agreements, any Restricted Collateral of such claims)Agere and its Subsidiaries) shall, which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including extent available for distribution (it being understood that the Collateral Agent may liquidate investments prior to maturity in order to make a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a3.4), be distributed (subject to the provisions of Section 3.5) shall continue to be held by the Subordinated Guarantee Collateral Agent until on each Distribution Date in the earlier following order of priority (i) application with such distributions being made by the Collateral Agent as provided in accordance with this Section 6.2(a) 3.4(g), and (ii) such time as such contingent indemnity or reimbursement claim has been extinguished, the applicable Administrative Agent shall be responsible for insuring that amounts distributed to it are distributed to its Lenders in the order of priority set forth below): First: to the extent that Collateral Agent for any unpaid Collateral Agent Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts reserved exceed in full, then ratably (without priority of any remaining asserted contingent indemnity or reimbursement claims as determined one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the Subordinated Guarantee respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Collateral Agent in its reasonable discretion.Fees other than such administrative expenses, an amount equal to the

Appears in 1 contract

Samples: Collateral Sharing Agreement (Lucent Technologies Inc)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee Agent The Collateral Trustee shall have the right (pursuant to Section 4.7) at any time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Agent Trustee Fees. The Subordinated Guarantee Agent Collateral Trustee shall provide written notice to the Ultimate Parent and each Administrative Agent Company of any such application applications of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid All moneys held by the Collateral Trustee in cash or otherwise satisfiedthe Collateral Account while a Notice of Acceleration is in effect shall, to the Subordinated Guarantee Agent shall have no obligation extent available for distribution (it being understood that the Collateral Trustee may liquidate investments prior to maturity in order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a3.4(b)) shall continue to be held and unless otherwise directed by the Subordinated Guarantee Agent until Directing Parties, as provided herein, be distributed (subject to the earlier provisions of Sections 3.5 and 3.7) by the Collateral Trustee on each Distribution Date in the following order of priority (iwith such distributions being made by the Collateral Trustee to the respective Primary Holder Representatives for the Secured Parties entitled thereto and the Secured Hedge Providers, as provided in Section 3.4(d), and each such Primary Holder Representative shall be responsible for insuring that amounts distributed to it are distributed to its Secured Parties in the order of priority set forth below): First: to the Collateral Trustee (and other trustees appointed pursuant to this Agreement) application for any unpaid Trustee Fees (including as provided in accordance with this Section 6.2(a5.3) and then to any Secured Party that has theretofore advanced or paid any Trustee Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Trustee Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: to any Primary Holder Representative for any unpaid expenses payable to such Person pursuant to the Secured Instruments and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such Persons in proportion to the unpaid amounts thereof on such Distribution Date; Fourth: to the holders of Secured Obligations in an amount equal to the unpaid principal and unpaid interest on and premium and other charges, if any, and reimbursement obligations (iiincluding, without limitation, the obligation to cash collateralize undrawn letters of credit) with respect to the Secured Obligations, outstanding termination amounts in respect of Hedging Obligations, interest and fees thereon and all other amounts constituting Secured Obligations (including but not limited to indemnities and payments for increased costs), in each case to the extent the same are due and payable, as of such time Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date; Fifth: all other amounts owed to Secured Parties in any capacity; and Sixth: any surplus then remaining shall be paid to the Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. The term “unpaid” as used in clauses Third and Fourth of Section 3.4(b) with respect to the relevant Grantor(s), refers to all amounts of Secured Obligations outstanding as of a Distribution Date, whether or not such contingent indemnity amounts are fixed or reimbursement claim has been extinguishedcontingent, and, in the case of an Insolvency Proceeding, with respect to any Grantor, whether or not such amounts are allowed in such Insolvency Proceeding, to the extent that such amounts reserved exceed prior distributions (whether actually distributed or set aside pursuant to Section 3.5) have not been made in respect thereof. The Collateral Trustee shall make all payments and distributions under this Section 3.4 (i) on account of Credit Agreement Obligations to the Credit Agreement Representative, pursuant to directions of the Credit Agreement Representative, for re-distribution in accordance with the provisions of the Credit Agreement; (ii) on account of any remaining asserted contingent indemnity or reimbursement claims as determined Public Note Obligations to the Public Note Representative, pursuant to directions of the Public Note Representative, for re-distribution in accordance with the provisions of the Public Note Documents and (iii) on account of any Hedging Obligations to the applicable Secured Hedge Providers, pursuant to directions provided by the Subordinated Guarantee Agent in its reasonable discretionCompany and determination of the Outstanding Amount of Hedging Obligations by the Company.

Appears in 1 contract

Samples: Collateral Trust and Intercreditor Agreement (American Capital, LTD)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee The Collateral Agent shall have the right at any time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Collateral Agent Fees. The Subordinated Guarantee . (b) All remaining moneys held by the Collateral Agent shall provide written notice in the Collateral Account or received by the Collateral Agent with respect to the Ultimate Parent and each Administrative Collateral shall, to the extent available for distribution (it being understood that the Collateral Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid may liquidate investments prior to maturity in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a) shall continue to 7.4), be held distributed by the Subordinated Guarantee Collateral Agent on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent to the respective representatives for the Secured Parties as provided in Section 7.4(d), and each such representative shall be responsible for insuring that amounts distributed to it are distributed to its Secured Parties in the order of priority set forth below): First: to the Collateral Agent for any unpaid Collateral Agent Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses described in clause First above, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: to the Secured Parties, the amount then due and owing and remaining unpaid in respect of the Obligations, pro rata among the Secured Parties to which such Obligations are then due and owing based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the earlier extent not then due and payable) in full; Fourth (this clause being applicable only if an Event of Default shall have occurred and be continuing): to the Secured Parties, the amount of unpaid principal, interest, fees, charges, costs and expenses in respect of the Obligations, pro rata among the Secured Parties holding such Obligations based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the extent not then due and payable) in full; and Fifth: any balance remaining after the Obligations shall have been paid or cash collateralized in full and any Incremental Revolving Commitments shall have been terminated shall be paid over to the Borrower or to whomsoever may be lawfully entitled to receive the same. (c) The term “unpaid” as used in clauses Third and Fourth of Section 7.4(b) refers: (i) application in accordance the absence of a bankruptcy proceeding with this Section 6.2(a) and respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and (ii) such time during the pendency of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts allowed (within the meaning of Title 11 of the United States Code entitled “Bankruptcy”) by the bankruptcy court in respect of the Obligations as such a basis for distribution (including estimated amounts, if any, allowed in respect of contingent indemnity or reimbursement claim has been extinguishedclaims), to the extent that such amounts reserved exceed any remaining asserted contingent indemnity or reimbursement claims as determined by prior distributions have not been made in respect thereof. (d) The Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations to the Subordinated Guarantee Agent Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in its reasonable discretionaccordance with the provisions of the Credit Agreement.

Appears in 1 contract

Samples: Credit Agreement (DEX ONE Corp)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee Agent The Collateral Trustee shall have the right (pursuant to Section 4.6) at any time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Agent Fees. The Subordinated Guarantee Agent shall provide written notice Trustee Fees without any requirement that such applications be made ratably from such accounts. (b) All moneys held by the Collateral Trustee in the Collateral Account while a Notice of Acceleration has been received by the Collateral Trustee, is effective, and remains in effect shall, to the Ultimate Parent and each Administrative Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid extent available for distribution (it being understood that the Collateral Trustee may liquidate investments prior to maturity in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a3.4(b)), be distributed (subject to the provisions of Sections 3.5 and 3.7) shall continue to be held by the Subordinated Guarantee Agent until Collateral Trustee on each Distribution Date in the earlier following order of priority (iwith such distributions being made by the Collateral Trustee to the respective Holder Representatives for the Secured Parties entitled thereto as provided in Section 3.4(d), and each such Holder Representative shall be responsible for insuring that amounts distributed to it are distributed to its Secured Parties in the order of priority set forth below): First: to the Collateral Trustee for any unpaid Trustee Fees and then to any Secured Party which has theretofore advanced or paid any Trustee Fees constituting administrative expenses allowable under Section 503(b) application of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in accordance full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Trustee Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: to any Holder Representative for any unpaid expenses payable to such Person pursuant to the Secured Instruments to the extent the same constitute First Priority Secured Obligations and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Persons in proportion to the unpaid amounts thereof on such Distribution Date; Fourth: to the holders of First Priority Secured Obligations in an amount equal to the unpaid principal of and unpaid interest on and premium and other charges, if any, and reimbursement obligations (including, without limitation, the obligation to cash collateralize undrawn letters of credit or letters of guarantee) with this respect to the First Priority Secured Obligations, any amounts that constitute Permitted First Lien Non-Loan Exposure, and interest and fees thereon, in each case to the extent the same are due and payable, as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date; Fifth: to the holders of First Priority Secured Obligations in an amount equal to all other amounts constituting First Priority Secured Obligations (including but not limited to indemnities and payments for increased costs), in each case to the extent the same are due and payable, as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date; Sixth: to any Holder Representative for any unpaid expenses payable to such Person pursuant to the Secured Instruments to the extent the same constitute Second Priority Secured Obligations and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such Persons in proportion to the unpaid amounts thereof on such Distribution Date; Seventh: to the holders of Second Priority Secured Obligations in an amount equal to all other Second Priority Secured Obligations which have not been paid, including termination amounts in respect of Designated Hedging Obligations that constitute Other Secured Non-Loan Exposure, amounts due in respect of Designated Cash Management Agreements that constitute Other Secured Non-Loan Exposure, and all other Second Priority Secured Obligations (including but not limited to the unpaid principal and unpaid interest on and premium and other charges, if any, with respect to Second Priority Additional Debt Obligations) then outstanding, in each case to the extent then due and payable, as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date; and Eighth: any surplus then remaining shall be paid to the Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. (c) The term “unpaid” as used in clauses Third, Fourth, Sixth and Seventh of Section 6.2(a3.4(b) and (ii) with respect to the relevant Grantor(s), refers to all amounts of Secured Obligations outstanding as of a Distribution Date, whether or not such time as amounts are fixed or contingent, and, in the case of an Insolvency Proceeding, with respect to any Grantor, whether or not such contingent indemnity or reimbursement claim has been extinguishedamounts are allowed in such Insolvency Proceeding, to the extent that prior distributions (whether actually distributed or set aside pursuant to Section 3.5) have not been made in respect thereof. (d) The Collateral Trustee shall make all payments and distributions under this Section 3.4: (i) on account of Credit Agreement Obligations to the Credit Agreement Administrative Agent, pursuant to directions of the Credit Agreement Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement; (ii) on account of any Additional Debt Obligations (subject to Section 3.5) to the relevant Additional Debt Representative, pursuant to directions of such amounts reserved exceed Additional Debt Representative, for re-distribution in accordance with the provisions of the applicable Additional Debt Documents; and (iii) on account of any remaining asserted contingent indemnity or reimbursement claims as determined other Secured Obligation, to the relevant Secured Party based on the information supplied to the Collateral Trustee by the Subordinated Guarantee Agent in its reasonable discretionBorrower pursuant to Section 7.3.

Appears in 1 contract

Samples: Credit Agreement (General Motors Co)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee Agent The Collateral Trustee shall have the right (pursuant to Section 4.7) at any time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Agent Trustee Fees. The Subordinated Guarantee Agent Collateral Trustee shall provide written notice to the Ultimate Parent and each Administrative Agent Company of any such application applications of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid . (b) All moneys held by the Collateral Trustee in cash or otherwise satisfiedthe Collateral Account while a Notice of Acceleration is in effect shall, to the Subordinated Guarantee Agent shall have no obligation extent available for distribution (it being understood that the Collateral Trustee may liquidate investments prior to maturity in order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a3.4(b)) shall continue to be held and unless otherwise directed by the Subordinated Guarantee Agent until Directing Parties, as provided herein, be distributed (subject to the earlier provisions of Sections 3.5 and 3.7) by the Collateral Trustee on each Distribution Date in the following order of priority (iwith such distributions being made by the Collateral Trustee to the respective Primary Holder Representatives for the Secured Parties entitled thereto and the Secured Hedge Providers, as provided in Section 3.4(d), and each such Primary Holder Representative shall be responsible for insuring that amounts distributed to it are distributed to its Secured Parties in the order of priority set forth below): First: to the Collateral Trustee (and other trustees appointed pursuant to this Agreement) application for any unpaid Trustee Fees (including as provided in accordance with this Section 6.2(a5.3) and (iithen to any Secured Party that has theretofore advanced or paid any Trustee Fees constituting administrative expenses allowable under Section 503(b) such time as such contingent indemnity or reimbursement claim has been extinguishedof the Bankruptcy Code, an amount equal to the extent that amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts reserved exceed any remaining asserted contingent indemnity or reimbursement claims as determined in full, then ratably to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the Subordinated Guarantee Agent respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Trustee Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in its reasonable discretion.full, then ratably to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: to any Primary Holder Representative for any unpaid expenses payable to such Person pursuant to the Secured Instruments and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such Persons in proportion to the unpaid amounts thereof on such Distribution Date;

Appears in 1 contract

Samples: Collateral Trust and Intercreditor Agreement (American Capital, LTD)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee The Collateral Agent shall have the right at any time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Collateral Agent Fees. The Subordinated Guarantee . (b) All remaining moneys held by the Collateral Agent shall provide written notice in the Collateral Account or received by the Collateral Agent with respect to the Ultimate Parent and each Administrative Collateral shall, to the extent available for distribution (it being understood that the Collateral Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid may liquidate investments prior to maturity in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a) shall continue to 7.4), be held distributed by the Subordinated Guarantee Collateral Agent on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent to the respective representatives for the Secured Parties as provided in Section 7.4(d), and each such representative shall be responsible for insuring that amounts distributed to it are distributed to its Secured Parties in the order of priority set forth below): First: to the Collateral Agent for any unpaid Collateral Agent Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses described in clause First above, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third, to the Secured Parties, the amount then due and owing and remaining unpaid in respect of the Obligations, pro rata among the Secured Parties to which such Obligations are then due and owing based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the earlier extent not then due and payable) in full; Fourth (this clause being applicable only if an Event of Default shall have occurred and be continuing), to the Secured Parties, the amount of unpaid principal, interest, fees, charges, costs and expenses in respect of the Obligations, pro rata among the Secured Parties holding such Obligations based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the extent not then due and payable) in full; Fifth, any balance remaining after the Obligations shall have been paid or cash collateralized in full, no Letters of Credit shall be outstanding and the Commitments shall have terminated shall be paid over to the Borrower or to whomsoever may be lawfully entitled to receive the same. (c) The term “unpaid” as used in clause Third and Fourth of Section 7.4(b) refers: (i) application in accordance the absence of a bankruptcy proceeding with this Section 6.2(a) and respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and (ii) such time during the pendency of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts allowed (within the meaning of Title 11 of the United States Code entitled “Bankruptcy”) by the bankruptcy court in respect of the Obligations as such a basis for distribution (including estimated amounts, if any, allowed in respect of contingent indemnity or reimbursement claim has been extinguishedclaims), to the extent that such amounts reserved exceed any remaining asserted contingent indemnity or reimbursement claims as determined by prior distributions have not been made in respect thereof. (d) The Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations to the Subordinated Guarantee Agent Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in its reasonable discretionaccordance with the provisions of the Credit Agreement.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (Dex Media East LLC)

Application of Moneys. (a) 10.1 All moneys assigned to the Agent and/or the Trustee and/or the Lenders under the Earnings Assignment shall be paid to the Earnings Account. 10.2 Subject to Section 5, the Subordinated Guarantee Agent shall have the right at any time to apply clause 10.4 hereof all moneys held by it in the Guarantee Collection Account paid to the payment of due and unpaid Subordinated Guarantee Agent Fees. The Subordinated Guarantee Agent Earnings Account shall provide written notice to the Ultimate Parent and each Administrative Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent as follows:- (A) first in payment of any and all sums whatsoever due and payable to pay the Agent and/or the Trustee and/or any one or more of the Lenders hereunder (such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not sums to be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee such order as the Agent shall provide written notice may in its sole discretion elect); (B) second in retention in the Earnings Account of amounts equivalent in aggregate to the Ultimate Parent amount of interest next falling due to be paid hereunder; (C) third in payment of the costs (if any) incurred by the Borrower in the normal day to day business of operating the Vessel; (D) fourth in accordance with the relevant provisions of the Bridge Loan Facility Agreement; and (E) fifth in retention of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements credit balance in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved pursuant to this Section 6.2(a) shall continue to be held by the Subordinated Guarantee Agent until the earlier of Earnings Account Provided That:- (i) sums retained in the Earnings Account pursuant to clauses 10.2(B) and (E) hereof shall be held on deposit at rates of interest normally paid by the Agent to customers for deposits of like amount and maturity and any interest accruing thereon shall be credited to the Earnings Account at monthly intervals; (ii) sums retained in the Earnings Account pursuant to clause 10.2(B) hereof shall be applied by the Agent in or towards payment of interest due hereunder on the due dates for payment thereof; and (iii) nothing herein contained shall be deemed to affect the absolute obligation of the Borrower to pay interest on and to repay each Drawing as provided in clauses 4 and 5 hereof. 10.3 Subject to clause 10.4 hereof all moneys payable to the Agent and/or the Trustee and/or the Lenders under the Insurance Assignment and any other moneys payable to the Agent and/or the Trustee and/or the Lenders by any one or more of the Security Parties under any one or more of this agreement, the Security Documents and any other documents executed pursuant hereto or thereto the application of which is not specifically provided for by another clause hereof shall be paid to the Agent's account with such bank or banks as the Agent may nominate from time to time and shall be applied by the Agent as follows:- (A) all moneys received from a Total Loss or sale of the Vessel shall be applied as follows:- (i) first in accordance with this Section 6.2(aclause 10.2(A) and hereof; (ii) such time as such contingent indemnity second in repayment of the Loan, in payment of accrued interest thereon and in payment of any sums due to any one or reimbursement claim has been extinguished, more of the Lenders by virtue of that repayment under clause 8.5 hereof; (iii) third in accordance with the relevant provisions of the Bridge Loan Facility Agreement; and (iv) fourth in payment of any credit balance to the extent that Borrower or to whomsoever may be entitled thereto; and (B) all moneys not covered by clause 10.3 (A) hereof shall be applied as follows:- (i) first in accordance with clause 10.2(A) hereof; (ii) second (in respect only of moneys received by virtue of the Insurance Assignment) in reimbursement to the Borrower for such amounts reserved exceed any remaining asserted contingent indemnity or reimbursement claims as determined of the costs (if any) incurred by the Subordinated Guarantee Borrower in effecting the repair of the damage in respect of which those moneys are received as the Agent shall approve (such approval not to be unreasonably withheld) and in payment to the Earnings Account of all moneys received in respect of loss of hire insurances (if any); (iii) third in repayment of the Loan, in payment of accrued interest thereon and in payment of any sums due to any one or more of the Lenders by virtue of that repayment under clause 8.5 hereof; (iv) fourth in accordance with the relevant provisions of the Bridge Loan Facility Agreement; and (v) fifth in payment of any credit balance to the Borrower or to whomsoever may be entitled thereto. 10.4 From and after the giving of notice by the Agent to the Borrower pursuant to clause 11.1 hereof all moneys whatsoever received or recovered by the Agent or the Trustee or any one or more of the Lenders from any one or more of the Security Parties under any one or more of this agreement, the Security Documents and any other documents executed pursuant hereto or thereto or from any other party under any one or more of the Mortgage, the Earnings Assignment and the Insurance Assignment and all moneys from time to time standing to the credit of the Earnings Account shall be paid to the Agent's account with such bank or banks as the Agent may nominate from time to time and shall be applied by the Agent as follows:- (A) first in accordance with clause 10.2(A) hereof, subject to any right the Agent or the Trustee or any one or more of the Lenders may have to delay any such application in order to maximise its reasonable discretionor their claim; (B) second in accordance with the relevant provisions of the Bridge Loan Facility Agreement; and (C) third in payment of any credit balance to the Borrower or to whomsoever may be entitled thereto.

Appears in 1 contract

Samples: Loan Agreement (Commodore Holdings LTD)

Application of Moneys. ALL moneys received by the Trustee under these presents from the relevant Issuer or, as the case may be, Telecom Italia (awhere the relevant Issuer is TI Finance) Subject (including any moneys which represent principal or interest in respect of Notes, Receipts or Coupons which have become void, or in respect of claims which have become prescribed, under Condition 9) shall, unless and to Section 5the extent attributable, the Subordinated Guarantee Agent shall have the right at any time to apply moneys held by it in the Guarantee Collection Account opinion of the Trustee, to a particular Series of the Notes issued by the relevant Issuer, be apportioned pari passu and rateably between each Series of the Notes issued by the relevant Issuer, and all moneys received by the Trustee under these presents from the relevant Issuer or, as the case may be, Telecom Italia (where the relevant Issuer is TI Finance) to the payment of due and unpaid Subordinated Guarantee Agent Fees. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent and each Administrative Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits extent attributable in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion opinion of the Subordinated Guarantee Agent, Trustee to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon a particular Series of the liquidation of such claims), which reserved amount (x) may be applied Notes issued by the Subordinated Guarantee Agent relevant Issuer or which are apportioned to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amountSeries as aforesaid, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved pursuant to this Section 6.2(a) shall continue to be held by the Subordinated Guarantee Agent until the earlier Trustee upon trust to apply them (subject to Clause 12): FIRST in payment or satisfaction of (iall amounts then due and unpaid under Clauses 15 and/or 16(J) application in accordance with this Section 6.2(a) and (ii) such time as such contingent indemnity or reimbursement claim has been extinguished, to the extent Trustee and/or any Appointee; SECONDLY in or towards payment pari passu and rateably of all principal and interest then due and unpaid in respect of the Notes of that such amounts reserved exceed any remaining asserted contingent indemnity Series; THIRDLY in or reimbursement claims as determined towards payment pari passu and rateably of all principal and interest then due and unpaid in respect of the Notes of each other Series issued by the Subordinated Guarantee Agent relevant Issuer; and FOURTHLY in its reasonable discretionpayment of the balance (if any) to the relevant Issuer (without prejudice to, or liability in respect of, any question as to how such payment to the relevant Issuer shall be dealt with as between the relevant Issuer and any other person), PROVIDED ALWAYS that any payment required to be made by the Trustee pursuant to these presents shall only be made subject to any applicable laws and regulations. Without prejudice to this Clause 10, if the Trustee holds any moneys which represent principal or interest in respect of Notes, Receipts or Coupons issued by the relevant Issuer which have become void or in respect of which claims have been prescribed under Condition 9, the Trustee will hold such moneys on the above trusts.

Appears in 1 contract

Samples: Trust Deed (Telecom Italia S P A)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee Agent shall have the right at any time to apply If available moneys held by it in the Guarantee Collection Account Debt Service Fund after any required transfers from the Redemption Fund are not sufficient on any day to pay all principal of, premium, if any, and interest on the Outstanding Bonds then due or overdue, such moneys (other than any sum in the Redemption Fund irrevocably set aside for the redemption of particular Bonds or required to purchase Bonds under outstanding purchase contracts) shall, after payment of all charges and disbursements of the Trustee and Paying Agent in accordance with this Agreement, be applied (in the order such Funds are named in this section) first to the payment of interest (other than interest on Bonds owned by the Company), including interest on overdue principal, in the order in which the same became due (pro rata with respect to interest which became due at the same time) and unpaid Subordinated Guarantee second to the payment of principal and premium, if any (other than principal of or premiums, if any, on Bonds owned by the Company), without regard to the order in which the same became due (in proportion to the amounts due). For this purpose interest on overdue principal shall be treated as coming due on the first day of each month. Whenever moneys are to be applied pursuant to this section, such moneys shall so be applied from time to time as the Trustee or the Paying Agent Feesshall determine, having due regard to the amount of such moneys available for application and the likelihood of additional moneys becoming available for such application in the future. Whenever the Trustee or the Paying Agent shall apply such moneys pursuant to this section, it shall fix the date (which shall be the first of a month unless the Trustee or the Paying Agent shall deem another date more suitable) upon which such application is to be made, and upon such date interest on the amounts of principal paid on such date shall cease to accrue. The Subordinated Guarantee Trustee or the Paying Agent shall provide written give such notice to as it may deem appropriate of the Ultimate Parent and each Administrative Agent fixing of any such application date. When interest or a portion of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully the principal is to be paid in cash or otherwise satisfiedon an overdue Bond, the Subordinated Guarantee Agent shall have no obligation to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Paying Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion require presentation of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims Bond for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination endorsement of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved pursuant to this Section 6.2(a) shall continue to be held by the Subordinated Guarantee Agent until the earlier of (i) application in accordance with this Section 6.2(a) and (ii) such time as such contingent indemnity or reimbursement claim has been extinguished, to the extent that such amounts reserved exceed any remaining asserted contingent indemnity or reimbursement claims as determined by the Subordinated Guarantee Agent in its reasonable discretionpayment.

Appears in 1 contract

Samples: Loan and Trust Agreement (Teco Energy Inc)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee The Collateral Agent shall have the right at any time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Collateral Agent Fees. The Subordinated Guarantee . (b) All remaining moneys held by the Collateral Agent shall provide written notice in the Collateral Account received by the Collateral Agent with respect to the Ultimate Parent and each Administrative Collateral shall, to the extent available for distribution (it being understood that the Collateral Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid may liquidate investments prior to maturity in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a4.4), be distributed (subject to the provisions of Sections 4.5 and 4.6) by the Collateral Agent on each Distribution Date in the following order of priority: FIRST: to the Collateral Agent for any unpaid Collateral Agent Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of Title 11 of the United States Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall continue be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; SECOND: to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; THIRD: to the Secured Parties that hold Secured Obligations, in an amount equal to all Secured Obligations then due and payable to them (including, without limitation, amounts in respect of letter of credit exposure), and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date; and FOURTH: any surplus then remaining shall be paid to the Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. (c) Any distribution pursuant to clause THIRD of subsection (b) above with respect to the undrawn amount of any outstanding letter of credit shall be paid to the Collateral Agent to be held by in an account (the Subordinated Guarantee "Special Letter of Credit Cash Collateral Account") as collateral for the Senior Credit Agreement Lenders and disposed of as provided in this subsection (c). As of the date hereof, the Facility LC Collateral Account (as defined in the Existing Credit Agreement) shall be the Special Letter of Credit Cash Collateral Account referred to herein. On each date after which a payment is made to a beneficiary pursuant to a draw on a letter of credit, the Collateral Agent until shall distribute to the earlier Administrative Agent from the amounts held pursuant to this subsection (c) for application to the payment of the reimbursement obligation due to the Senior Credit Agreement Lenders with respect to such draw an amount equal to the product of (i1) application the total amount then held in accordance with the Special Letter of Credit Cash Collateral Account pursuant to this Section 6.2(asubsection (c), and (2) a fraction, the numerator of which is the amount of such draw and the denominator of which is the aggregate undrawn amount of all outstanding letters of credit immediately prior to such draw. On each date after which a reduction in the undrawn amount of any outstanding letter of credit occurs other than on account of a payment made to a beneficiary pursuant to a draw on such letter of credit, the Collateral Agent shall distribute to the Administrative Agent from the amounts held pursuant to this subsection (c) an amount equal to the product of (1) the total amount then held in the Special Letter of Credit Cash Collateral Account pursuant to this subsection (c) and (ii2) a fraction, the numerator of which is the amount of such reduction and the denominator of which is the aggregate undrawn amount of all outstanding letters of credit immediately prior to such reduction, which amount shall be distributed as provided in clause THIRD of subsection (b) above. At such time as such contingent indemnity or reimbursement claim has been extinguishedno letters of credit are outstanding, to the extent that such amounts reserved exceed any remaining asserted contingent indemnity or reimbursement claims amount held in the Special Letter of Credit Cash Collateral Account pursuant to this subsection (c), after the distribution therefrom as determined by the Subordinated Guarantee Agent provided above, shall be distributed as provided in its reasonable discretionsubsection (b) above.

Appears in 1 contract

Samples: Collateral Sharing Agreement (Vitas Healthcare of Texas, L.P.)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee The Collateral Agent shall have the right at any time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Collateral Agent Fees. The Subordinated Guarantee . (b) All remaining moneys held by the Collateral Agent shall provide written notice in the Collateral Account or received by the Collateral Agent with respect to the Ultimate Parent and each Administrative Collateral shall, to the extent available for distribution (it being understood that the Collateral Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid may liquidate investments prior to maturity in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a) shall continue to 7.4), be held distributed by the Subordinated Guarantee Collateral Agent on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent to the respective representatives for the Secured Parties as provided in Section 7.4(d), and each such representative shall be responsible for insuring that amounts distributed to it are distributed to its Secured Parties in the order of priority set forth below): First, to the Collateral Agent for any unpaid Collateral Agent Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Second, to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses described in clause First above, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third, to the Secured Parties, the amount then due and owing and remaining unpaid in respect of the Obligations, pro rata among the Secured Parties to which such Obligations are then due and owing based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the earlier extent not then due and payable) in full; Fourth (this clause being applicable only if an Event of Default shall have occurred and be continuing), to the Secured Parties, the amount of unpaid principal, interest, fees, charges, costs and expenses in respect of the Obligations, pro rata among the Secured Parties holding such Obligations based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the extent not then due and payable) in full; and Fifth, any balance remaining after the Obligations shall have been paid or cash collateralized in full, no Letters of Credit shall be outstanding and the Commitments shall have terminated shall be paid over to the Borrower or to whomsoever may be lawfully entitled to receive the same. (c) The term “unpaid” as used in clauses Third and Fourth of Section 7.4(b) refers: (i) application in accordance the absence of a bankruptcy proceeding with this Section 6.2(a) and respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and (ii) such time during the pendency of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts allowed (within the meaning of Title 11 of the United States Code entitled “Bankruptcy”) by the bankruptcy court in respect of the Obligations as such a basis for distribution (including estimated amounts, if any, allowed in respect of contingent indemnity or reimbursement claim has been extinguishedclaims), to the extent that such amounts reserved exceed any remaining asserted contingent indemnity or reimbursement claims as determined by prior distributions have not been made in respect thereof. (d) The Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations to the Subordinated Guarantee Agent Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in its reasonable discretionaccordance with the provisions of the Credit Agreement.

Appears in 1 contract

Samples: Guarantee and Collateral Agreement (R H Donnelley Corp)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee Agent shall have the right at any time to apply All moneys held by it the Trustee in the Guarantee Collection Collateral Account or received by the Trustee with respect to the payment Collateral while a Notice of due and unpaid Subordinated Guarantee Agent Fees. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent and each Administrative Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid Acceleration is in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved pursuant to this Section 6.2(a) shall continue to be held by the Subordinated Guarantee Agent until the earlier of (i) application in accordance with this Section 6.2(a) and (ii) such time as such contingent indemnity or reimbursement claim has been extinguishedeffect shall, to the extent available for distribution (it being understood that the Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this subsection 3.4), be distributed (subject to the provisions of subsections 3.5 and 3.6) by the Trustee on each Distribution Date in the following order of priority (with such distributions being made by the Trustee to the respective Holder Representatives, if applicable, for the Secured Parties entitled thereto as provided in subsection 3.4(c), and each such Holder Representative shall be responsible for insuring that amounts distributed to it are distributed to its Secured Parties in the order of priority set forth below): FIRST: to the Trustee for any unpaid Trustee Fees and then to any Secured Party, which has theretofore advanced or paid any Trustee Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts reserved exceed in full, then ratably (without priority of any remaining asserted contingent indemnity or reimbursement claims as determined one over any other) to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the Subordinated Guarantee Agent respective Secured Parties and remaining unpaid on such Distribution Date; SECOND: to any Secured Party which has theretofore advanced or paid any Trustee Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in its reasonable discretion.full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date;

Appears in 1 contract

Samples: Trust Agreement (Worthington Industries Inc)

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee The Collateral Agent shall have the right at any time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Collateral Agent Fees. The Subordinated Guarantee . (b) All remaining moneys held by the Collateral Agent shall provide written notice in the Collateral Account received by the Collateral Agent with respect to the Ultimate Parent and each Administrative Restricted Collateral shall, to the extent available for distribution (it being understood that the Collateral Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid may liquidate investments prior to maturity in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a3.04), be distributed (subject to the provisions of Section 3.04(e) and Section 3.05) by the Collateral Agent on each Distribution Date in the following order of priority: First: to the Collateral Agent for any unpaid Collateral Agent Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall continue be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: to the Secured Parties that are Term Lenders and hold Term Loan Obligations which constitute Restricted Secured Indebtedness, an amount equal to all Term Loan Obligations constituting Restricted Secured Indebtedness then owing to them, whether or not then due and payable, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date; Fourth: to the Secured Parties holding all other Restricted Collateral Obligations, amounts equal to all other sums which constitute Restricted Collateral Obligations then owing to them, whether or not then due and payable, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date; and Fifth: any surplus then remaining shall be paid to the Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. (c) All remaining moneys held by the Subordinated Guarantee Collateral Agent until in the earlier of (i) application in accordance Collateral Account received by the Collateral Agent with this Section 6.2(a) and (ii) such time as such contingent indemnity or reimbursement claim has been extinguishedrespect to the Unrestricted Collateral shall, to the extent available for distribution (it being understood that the Collateral Agent may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 3.04), be distributed (subject to the provisions of Section 3.04(e) and Section 3.05) by the Collateral Agent on each Distribution Date in the following order of priority: First: to the Collateral Agent for any unpaid Collateral Agent Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts reserved exceed in full, then ratably (without priority of any remaining asserted contingent indemnity or reimbursement claims as determined one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the Subordinated Guarantee respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in its reasonable discretion.full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: to the Secured Parties that are Term Lenders and hold Term Loan Obligations, in an amount equal to all Term Loan Obligations then owing to them, whether or not then due and payable, and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date;

Appears in 1 contract

Samples: Collateral Sharing Agreement (Crown Cork & Seal Co Inc)

Application of Moneys. All moneys received by the Trustee under these presents (aincluding any moneys which represent principal or interest in respect of Notes or Coupons which have become void under Condition 17) Subject shall, unless and to Section 5the extent attributable, the Subordinated Guarantee Agent shall have the right at any time to apply moneys held by it in the Guarantee Collection Account opinion of the Trustee, to a particular Series of the Notes issued by the Issuer, be apportioned pari passu and rateably between each Series of the Notes issued by the Issuer, and all moneys received by the Trustee under these presents to the payment of due and unpaid Subordinated Guarantee Agent Fees. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent and each Administrative Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits extent attributable in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion opinion of the Subordinated Guarantee Agent, Trustee to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon a particular Series of the liquidation of such claims), which reserved amount (x) may be applied Notes issued by the Subordinated Guarantee Agent Issuer or which are apportioned to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) Series as aforesaid, shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved pursuant to this Section 6.2(a) shall continue to be held by the Subordinated Guarantee Agent until Trustee upon trust to apply them (subject to Clause 7, 8 and 12) as follows: (a) FIRST in payment or satisfaction of all amounts then due and unpaid under Clauses 16 and/or 17(j) to the earlier Trustee and/or any Appointee; (b) SECONDLY, only if Regulatory Capital Requirement (Principal), Regulatory Capital Requirement (All Amounts) or Solvency Condition is specified as being applicable in the Final Terms (in the case of moneys attributable in the opinion of the Trustee to a particular Series of Notes or which are apportioned to any such Series as aforesaid (including any moneys in respect of such Notes and/or Coupons (if any) relating thereto which have become void under Condition 17)) if, prior to receipt of any such (i) application moneys (only if Regulatory Capital Requirement (All Amounts) or Solvency Condition is specified as being applicable in the Final Terms) or (ii) principal only in respect of the Notes (only if Regulatory Capital Requirements (Principal) is specified as applicable in the Final Terms) or within 30 days thereafter the Trustee is provided with a report indicating that the Issuer does not or will not satisfy the Issuer Solvency Condition (or, if the moneys have been received from the Guarantor, the Guarantor does not or will not satisfy the Guarantor Solvency Condition) and/or the Regulatory Capital Requirement (as applicable) in compliance with the requirements of Clause 7 and, if applicable, Clause 8, as the case may be, (which shall be requested by the Trustee on receipt of any such moneys if it has not been received by the Trustee prior thereto), in return to the Issuer or, as the case may be, the Guarantor of the whole or such part of such payment (after any necessary deductions pursuant to the preceding paragraph of this Clause) as caused the Issuer not to then satisfy the Issuer Solvency Condition (or, as the case may be, the Guarantor not to then satisfy the Guarantor Solvency Condition) and/or the Regulatory Capital Requirement (as applicable) for the purposes of the Issuer's or the Guarantor’s obligations under these presents as if it had not been paid by the Issuer or, as the case may be, the Guarantor and its original payment shall be deemed not to have discharged any of the obligations of the Issuer or, as the case may be, the Guarantor under these presents); (c) THIRDLY in or towards payment pari passu and rateably of all principal and interest including Arrears of Interest (if applicable in accordance with Condition 6.6) (including, where Arrears of Interest Accrual is specified as being applicable in the Final Terms, interest on such Arrears of Interest) then due and unpaid in respect of the Notes of that Series; (d) FOURTHLY, in or towards payment pari passu and rateably of all principal and interest including Arrears of Interest (if applicable in accordance with Condition 6.6) (including, where Arrears of Interest Accrual is specified as being applicable in the Final Terms, interest on such Arrears of Interest) then due and unpaid in respect of the Notes of each other Series save that, where at the relevant time there are outstanding Notes where Regulatory Capital Requirement (Principal), Regulatory Capital Requirement (All Amounts) or Solvency Condition is specified as applicable in the Final Terms, if prior to receipt of any moneys apportioned to such Notes or within 30 days thereafter the Trustee is provided with a report indicating that the Issuer does not or will not satisfy the Issuer Solvency Condition Condition (or, if the moneys have been received from the Guarantor, the Guarantor does not or will not satisfy the Guarantor Solvency Condition) and/or the Regulatory Capital Requirement (as applicable) in compliance with the requirements of Clause 7 and, if applicable, Clause 8, as the case may be, (which shall be requested by the Trustee on receipt of any such moneys if it has not been received by the Trustee prior thereto) there shall be returned to the Issuer or, as the case may be, the Guarantor the whole or such part of any such moneys which would otherwise be applied pursuant to this Section 6.2(aparagraph towards payment pari passu and rateably of all (i) principal and interest then due and unpaid (where Regulatory Capital Requirement (All Amounts) or Solvency Condition is specified as being applicable in the Final Terms); or (ii) principal then due and unpaid (where Regulatory Capital Requirement (Principal) is specified as being applicable in the Final Terms) in respect of such time Notes as such contingent indemnity caused the Issuer not to then satisfy the Issuer Solvency Condition (or, as the case may be, the Guarantor not to then satisfy the Guarantor Solvency Condition) and/or the Regulatory Capital Requirement (as applicable) for the purpose of Clause 7 and, if applicable, Clause 8, as the case may be, (and any money so returned shall be treated for the purposes of the Issuer's or reimbursement claim has the Guarantor’s obligations under these presents as if it had not been extinguishedpaid by the Issuer or, as the case may be, the Guarantor and its original payment shall be deemed not to have discharged any of the obligations of the Issuer or, as the case may be, the Guarantor under these presents); and (e) FIFTHLY in payment of the balance (if any) to the extent that Issuer (without prejudice to, or liability in respect of, any question as to how such amounts reserved exceed payment to the Issuer shall be dealt with as between the Issuer and any remaining asserted contingent indemnity other person). Without prejudice to this Clause 11, if the Trustee holds any moneys which represent principal or reimbursement claims as determined interest in respect of Notes or Coupons issued by the Subordinated Guarantee Agent in its reasonable discretionIssuer which have become void under Condition 17, the Trustee will hold such moneys on the above trusts.

Appears in 1 contract

Samples: Supplemental Trust Deed

Application of Moneys. (a) Subject to Section 5, the Subordinated Guarantee Agent The Trustee shall have the right at any time to apply moneys of Navistar Financial held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Agent Trustee’s Fees. The Subordinated Guarantee Agent shall provide written notice Subject to Section 6.05, all remaining moneys held by the Trustee in the Collateral Account while a Notice of Acceleration is in effect shall, to the Ultimate Parent and each Administrative Agent of any such application of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid extent available for distribution (it being understood that the Trustee may liquidate investments prior to maturity in cash or otherwise satisfied, the Subordinated Guarantee Agent shall have no obligation order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a) shall continue to Section), be held distributed by the Subordinated Guarantee Agent until Trustee on dates fixed by the earlier Trustee (the first of which shall be within 90 days after the Trustee receives a Notice of Acceleration and the remainder of which shall be monthly thereafter on the day of the month corresponding to the first Distribution Date (or, if there is no such corresponding day, the last day of such month) for such distribution (individually a “Distribution Date” and collectively “Distribution Dates”) in the following order of priority: First: to any Secured Party which has theretofore advanced or paid any unpaid Trustee’s Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party prior to such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any unpaid Trustee’s Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party prior to such Distribution Date; Third: to fee Secured Parties entitled thereto, an amount equal to their respective Catch-up Amounts (as defined in subsection (c) below), if any, and, if such moneys shall be insufficient to pay such Catch-up Amounts in full, then to such Secured Parties ratably in proportion to their respective Catch-up Amounts; Fourth: to the Secured Parties entitled thereto in an amount equal to the unpaid principal of, premium, if any, and interest on fee Secured Obligations (other than Financial Services Obligations) then outstanding whether or not then due and payable, and all unpaid amounts then due and payable by Navistar Financial in respect of the Financial Services Obligations, and all unpaid fees and expenses of any Indenture Trustee under any Debt Indenture, and, if such moneys shall be insufficient to pay such principal, premium, interest and other amounts in full, then ratably (without priority of any one over any other, except in accordance with applicable subordination provisions) to the Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date; Fifth: to the Secured Parties, amounts equal to all other sums then due and payable in respect of the Secured Obligations, including, without limitation, the costs and expenses of the Secured Parties and their representatives which are due and payable under the relevant Secured Instruments as of such Distribution Date and, if such moneys shall be insufficient to pay such sums in full, then ratably to the Secured Parties in proportion to such sums; and Sixth: any surplus then remaining shall be paid to Navistar Financial or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. (b) The term “unpaid” as used in clause Fourth of subsection (a) above and in subsection (c) below, with respect to any Secured Obligations, refers: (i) application in accordance the absence of a bankruptcy proceeding with this Section 6.2(a) and respect to Navistar Financial, to all amounts of such Secured Obligations outstanding as of a Distribution Date, and (ii) during the pendency of a bankruptcy proceeding with respect to Navistar Financial, to all amounts which have not been disallowed by the bankruptcy court in respect of such time Secured Obligations as such a basis for distribution (including estimated amounts, if any, allowed in respect of contingent indemnity or reimbursement claim has been extinguishedclaims), to the extent that prior distributions (whether actually distributed or set aside pursuant to Section 6.05) have not been made in respect thereof. (c) Catch-up Amounts shall be calculated on any Distribution Date before giving effect to any distribution on such Distribution Date pursuant to clauses Fourth, Fifth and Sixth of subsection (a) above. The term “Catch-up Amount” means, with respect to any Secured Instrument, the amount, if any, required to be distributed to the Secured Party or Parties in respect of Secured Obligations thereunder, so that, immediately after such distribution, the ratio of (i) all amounts reserved exceed theretofore distributed hereunder to such Secured Party or Parties in respect of such Secured Instrument to (ii) the unpaid amount then due and payable to such Secured Party or Parties thereunder plus the amount of all distributions theretofore made hereunder in respect thereof, is equal to the highest ratio of (x) all amounts theretofore distributed hereunder in respect of any remaining asserted contingent indemnity other Secured Instrument to (y) the unpaid amount then due and payable to the Secured Party or reimbursement claims as determined by Parties with respect thereto plus the Subordinated Guarantee Agent amount of all distributions theretofore made hereunder in its reasonable discretionrespect thereof.

Appears in 1 contract

Samples: Credit Agreement (Navistar International Corp)

Application of Moneys. (a) Subject to Section 5the terms, conditions and provisions of the Intercreditor Agreement, the Subordinated Guarantee Agent Collateral Trustee shall have the right (pursuant to Section 4.7) at any time to apply moneys held by it in the Guarantee Collection Collateral Account to the payment of due and unpaid Subordinated Guarantee Agent Trustee Fees. The Subordinated Guarantee Agent Collateral Trustee shall provide written notice to the Ultimate Parent and each Administrative Agent Company of any such application applications of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid . (b) All moneys held by the Collateral Trustee in cash or otherwise satisfiedthe Collateral Account while a Notice of Acceleration is in effect shall, to the Subordinated Guarantee Agent shall have no obligation extent available for distribution (it being understood that the Collateral Trustee may liquidate, without liability, investments prior to maturity in order to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved distribution pursuant to this Section 6.2(a) shall continue to be held 3.4(b)), unless otherwise directed by the Subordinated Guarantee Agent until Directing Parties, as provided herein, and subject to the earlier terms, conditions and provisions of the Intercreditor Agreement, be distributed (isubject to the provisions of Sections 3.5 and 3.7) application by the Collateral Trustee on each Distribution Date in accordance the following order of priority (with such distributions being made by the Collateral Trustee to the respective Primary Holder Representatives for the Secured Parties entitled thereto, as provided in Section 3.4(d), and each such Primary Holder Representative shall be responsible for insuring that amounts distributed to it are distributed to its Secured Parties in the order of priority set forth below): First: to the Collateral Trustee (and other trustees appointed pursuant to this Agreement) for any unpaid Trustee Fees (including as provided in Section 6.2(a5.3) due or past due and then to any Secured Party that has theretofore advanced or paid any Trustee Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy Code, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Second: to any Secured Party which has theretofore advanced or paid any Trustee Fees other than such administrative expenses, an amount equal to the amount thereof so advanced or paid by such Secured Party and for which such Secured Party has not been reimbursed prior to such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such Secured Parties in proportion to the amounts of such Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: to any Primary Holder Representative for any unpaid expenses due or past due to such Person pursuant to the Secured Instruments and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such Persons in proportion to the unpaid amounts thereof on such Distribution Date; Fourth: to the holders of Secured Obligations in an amount equal to the unpaid principal and unpaid interest on and premium and other charges, if any, with respect to the Secured Obligations, and all other amounts constituting Secured Obligations (iiincluding but not limited to indemnities and payments for increased costs), in each case to the extent the same are due and payable, as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date; Fifth: all other amounts owed to Secured Parties in any capacity pursuant to the Secured Instruments and to the extent constituting Secured Obligations; and Sixth: any surplus then remaining shall be paid to the Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct. (c) The term “unpaid” as used in clauses Third and Fourth of Section 3.4(b) with respect to the relevant Grantor(s), refers to all amounts of Secured Obligations outstanding as of a Distribution Date, and, in the case of an Insolvency Proceeding, with respect to any Grantor, whether or not such time as amounts are allowed in such contingent indemnity or reimbursement claim has been extinguishedInsolvency Proceeding, to the extent that such amounts reserved exceed prior distributions (whether actually distributed or set aside pursuant to Section 3.5) have not been made in respect thereof. (d) The Collateral Trustee shall make all payments and distributions under this Section 3.4 on account of Restructuring Note Obligations to the Restructuring Note Indenture Trustee, pursuant to written directions of the Restructuring Note Indenture Trustee, for re-distribution in accordance with the provisions of the Restructuring Note Documents; and (ii) on account of any remaining asserted contingent indemnity or reimbursement claims as determined by New Money Note Obligations to the Subordinated Guarantee Agent New Money Note Indenture Trustee, pursuant to written directions of the New Money Note Indenture Trustee, for re-distribution in its reasonable discretionaccordance with the provisions of the New Money Note Documents.

Appears in 1 contract

Samples: Collateral Trust Agreement (YRC Worldwide Inc.)

Application of Moneys. (a) Subject to Section 5Upon the occurrence and during the continuance of a Related Event of Default, the Subordinated Guarantee Agent Indenture Trustee shall have establish and maintain one or more Related Collateral Accounts in respect of the right at Notes of each particular Series into which shall be deposited all Related Collections (and the proceeds of and interest on any time Permitted Investments thereof) such that the Related Collections required herein to apply moneys held by it in the Guarantee Collection Account be applied to the payment of due and unpaid Subordinated Guarantee Agent FeesRelated Obligations Secured shall be segregated. The Subordinated Guarantee Agent shall provide written notice All moneys standing in the Related Collection Accounts attributable to the Ultimate Parent and each Administrative Agent Related Asset Interests at the time of any such application a Related Event of moneys. Until all due and unpaid Subordinated Guarantee Agent Fees are fully paid in cash or otherwise satisfied, the Subordinated Guarantee Agent Default shall have no obligation to make any disbursements from the Guarantee Collection Account to any Credit Party. The Subordinated Guarantee Agent may reserve from deposits in the Guarantee Collection Account an amount necessary, determined in the reasonable discretion of the Subordinated Guarantee Agent, to satisfy any asserted contingent indemnity or reimbursement claims for which it would be entitled to reimbursement pursuant to Section 7 (upon the liquidation of such claims), which reserved amount (x) may be applied by the Subordinated Guarantee Agent to pay any such indemnity or reimbursement claims upon the liquidation thereof and (y) shall not be disbursed to any Credit Party until such indemnity or reimbursement claims are either liquidated and paid in full or otherwise satisfied. The Subordinated Guarantee Agent shall provide written notice transferred to the Ultimate Parent of any such reserved amount, including a description of such contingent indemnity or reimbursement claims. The agreements in this Section 6.2(a) shall survive the termination of the other provisions of this Agreement and the resignation or removal of the Subordinated Guarantee Agent hereunder and, notwithstanding any such event, any amounts reserved pursuant to this Section 6.2(a) shall continue to be held by the Subordinated Guarantee Agent until the earlier of (i) application appropriate Related Collateral Accounts in accordance with this Section 6.2(a) the Related Securitization Agreements. All further Related Collections and (ii) such time as such contingent indemnity or reimbursement claim has been extinguished, the proceeds of sale of any Related Collateral shall be deposited to the extent that such amounts reserved exceed any remaining asserted contingent indemnity or reimbursement claims Related Collateral Account in accordance with the Related Securitization Agreement, all as determined by the Subordinated Guarantee Agent Indenture Trustee, which determination shall be conclusive for purposes of this Indenture, absent manifest error. The Indenture Trustee (and any receiver appointed by it pursuant to this Indenture) shall have sole access to such accounts and shall apply the moneys therein for the benefit of the Specified Creditors as provided in its reasonable discretionthe Related Supplement and the Related Securitization Agreement. Notwithstanding the foregoing, all moneys received on account of Related Asset Interests which have been assigned to a Related Credit Enhancer pursuant to a Related Credit Enhancement Agreement shall not be deposited to a Related Collateral Account but shall be remitted by the Trust or the Indenture Trustee to the Related Credit Enhancer entitled thereto. All moneys standing in a Related Collateral Account or otherwise received by the Indenture Trustee (or any receiver appointed by it pursuant to this Indenture) pursuant to this Article 9 shall be applied in the manner and priorities indicated in the Related Supplement and the Related Securitization Agreement.

Appears in 1 contract

Samples: Trust Indenture (PHH Corp)