Application of Moneys. (a) The Collateral Agent shall have the right at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Fees. (b) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the 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 7.4), be distributed by the 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 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and (ii) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that 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 Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance 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) The Collateral Agent shall have the right at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Fees.
(b) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the Restricted 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 7.43.4), 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 to the respective representatives for the Secured Parties as provided in Section 7.4(d3.4(e), and each such representative the applicable Administrative Agent shall be responsible for insuring that amounts distributed to it are distributed to its Secured Parties 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 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 First aboveFourth 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 Collateral Agent in the Collateral Account received by the Collateral Agent with respect 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 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, the amount amounts equal to all Obligations then due and owing and remaining unpaid to them (other than amounts described in respect of the Obligationsclause Fourth below), 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 whether or cash collateralized (to the extent 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 (this clause being applicable only if an Event of Default shall have occurred and be continuing): Fourth: to the Secured Parties, the amount of unpaid principal, interest, fees, charges, amounts equal to all costs and expenses in respect of the Obligations, pro rata among the Secured Parties holding and their representatives which constitute Obligations and are due and payable under the relevant instruments evidencing or agreements governing such Obligations based on the respective as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts thereofin full, until such Obligations are paid or cash collateralized (then ratably to the extent not then due and payable) Secured Parties in fullproportion to the unpaid amounts thereof on such Distribution Date; and Fifth: any balance surplus then 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 Grantors or their successors or assigns 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) 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 same or as a basis for distribution (including estimated amounts, if any, allowed in respect court of contingent claims), to the extent that prior distributions have not been made in respect thereofcompetent jurisdiction may direct.
(d) The Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations to the Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.
Appears in 2 contracts
Samples: Collateral Sharing Agreement (Lucent Technologies Inc), Collateral Sharing Agreement (Lucent Technologies Inc)
Application of Moneys. (a) The Collateral Agent 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 Collateral Account to the payment of due and unpaid Collateral Agent FeesTrustee Fees in priority to all other amounts that may be due and owing to the Studios from time to time.
(b) All remaining moneys held by the Collateral Agent Trustee in the Collateral Account or received by the Collateral Agent with respect to the Collateral while a Notice of Acceleration is in effect shall, to the extent available for distribution (it being understood that the Collateral Agent Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.4subsection 3.4(b)), be distributed (subject to the provisions of subsection 3.5) by the Collateral Agent Trustee on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent Trustee to the respective representatives for the Secured Parties entitled thereto as provided in Section 7.4(dsubsection 3.4(c), and each such representative the Collateral Trustee 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 distributed on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the 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 samea Pro Rata basis).
(c) The term “unpaid” as used in clauses Third and Fourth of Section 7.4(b) refers:
(i) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that prior distributions have not been made in respect thereof.
(d) The Collateral Agent Trustee shall make all payments and distributions under this Section 7.4 subsection 3.4 on account of the Secured Obligations to the Administrative AgentSecured 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, pursuant all distributions shall be made at such times and as promptly as the Collateral Trustee shall in its good faith and discretion determine to directions of be reasonable and practicable under the Administrative Agentcircumstances, for re-distribution but in accordance with the provisions terms of this Collateral Trust Agreement including the Credit Agreementrequired 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. All moneys received by the Trustee under these presents from the relevant Issuer or, as the case may be, the Guarantor (including any moneys which represent principal or interest in respect of Notes or Coupons which have become void under Condition 9) shall, unless and to the extent attributable, in the 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, the Guarantor to the extent attributable in the opinion of the Trustee to a particular Series of the Notes issued by the relevant Issuer or which are apportioned to such Series as aforesaid, shall be held by the Trustee upon trust to apply them (subject to Clause 12):
(a) The Collateral Agent shall have the right at any time to apply moneys held by it FIRST in the Collateral Account to the payment or satisfaction of all amounts then due and unpaid Collateral Agent Fees.under Clauses 15 and/or 16(j) to the Trustee and/or any Appointee;
(b) All remaining moneys held by the Collateral Agent SECONDLY in the Collateral Account or received by the Collateral Agent with respect to the 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 7.4), be distributed by the Collateral Agent on each Distribution Date in the following order towards payment pari passu and rateably 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), all principal 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 interest then due and owing and remaining unpaid in respect of the Obligations, pro rata among the Secured Parties to which such Obligations are Notes of that Series;
(c) THIRDLY in or towards payment pari passu and rateably of all principal and interest then due and owing based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the 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 Notes 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) in the absence of a bankruptcy proceeding with respect to each other Series issued by the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, Issuer; and
(ii) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that 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 FOURTHLY in payment of Obligations the balance (if any) to the Administrative Agentrelevant Issuer or the Guarantor, pursuant as the case may be (without prejudice to, or liability in respect of, any question as to directions how such payment to the relevant Issuer shall be dealt with as between the relevant Issuer or the Guarantor and any other person). Without prejudice to this Clause 10, if the Trustee holds any moneys which represent principal or interest in respect of Notes issued by the Administrative Agentrelevant Issuer which have become void under Condition 9 or in respect of which claims have been prescribed, for re-distribution in accordance with the provisions of Trustee will as soon as practicable pay the Credit Agreementsame to the relevant Issuer or the Guarantor, as the case may be.
Appears in 2 contracts
Samples: Twelfth Supplemental Trust Deed, Thirteenth Supplemental Trust Deed
Application of Moneys. (a) The Subject to the rights of any creditor with prior security or preferential claims (other than rights under the Secured Instruments), the proceeds of enforcement of the security over any Collateral conferred by the Security Documents and the Bond Security Documents shall FIRST in payment of the fees of the Collateral Agent shall have and of all costs, expenses and liabilities (and all interest thereon) reasonably incurred by or on behalf of the right at Collateral Agent and any time receiver, attorney or agent in connection with carrying out its duties and exercising its powers and discretions under the Security Documents, the Bond Security Documents or this Agreement and the remuneration of the Collateral Agent and every receiver under the Security Documents and the Bond Security Documents and all amounts payable under Section 4.03; SECOND in payment of all costs and expenses reasonably incurred by or on behalf of any Senior Agreement Creditor or Bond Creditor in connection with such enforcement; THIRD in payment to apply moneys held by it the Security Agent for application towards the unpaid balance of the Senior Agreement Obligations as provided for in the Priority Agreement and in payment to the Senior Note Trustee for application towards the unpaid balance of the Senior Note Obligations, equally, ratably and pari passu between themselves; provided that all payments made to the Senior Note Trustee to the extent reasonably possible shall be made in U.S. Dollars with any non-U.S. Dollar amounts being converted to U.S. Dollars by the Collateral Account Agent, at the Exchange Rate, with the cost of such conversion being netted against payments made to the Senior Note Trustee; FOURTH the payment of due and unpaid Collateral Agent Feesthe surplus (if any) to the Loan Party concerned or other person entitled thereto.
(b) All remaining moneys held by the Collateral Agent in the Collateral Account No such proceeds or received by the Collateral Agent with respect to the 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 7.4), be distributed by the 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 amounts shall be responsible for insuring that applied in payment of any amounts distributed to it are distributed to its Secured Parties specified 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 sub paragraphs in paragraph (a) above until all amounts specified 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 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 earlier sub paragraph 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 An acknowledgement of Section 7.4(b) refers:
(i) in the absence of a bankruptcy proceeding with respect to receipt signed by the relevant Grantor(s), person to all amounts whom payments are to be made under paragraph (a) above shall be a good discharge of the Obligations outstanding as of a Distribution Date, and
(ii) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that prior distributions have not been made in respect thereofCollateral Agent.
(d) The Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations to the Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.
Appears in 1 contract
Application of Moneys. (a) The Subject to the terms, conditions and provisions of the Intercreditor Agreement, the Collateral Agent Trustee shall have the right (pursuant to Section 4.7) at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Trustee Fees. The Collateral Agent FeesTrustee shall provide written notice to the Company of any such applications of moneys.
(b) All remaining moneys held by the Collateral Agent Trustee in the Collateral Account or received by the Collateral Agent with respect to the Collateral while a Notice of Acceleration is in effect shall, to the extent available for distribution (it being understood that the Collateral Agent Trustee may liquidate liquidate, without liability, investments prior to maturity in order to make a distribution pursuant to this Section 7.43.4(b)), unless otherwise directed by the Directing Parties, as provided herein, and subject to the terms, conditions and provisions of the Intercreditor Agreement, be distributed (subject to the provisions of Sections 3.5 and 3.7) by the Collateral Agent Trustee on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent Trustee to the respective representatives Primary Holder Representatives for the Secured Parties entitled thereto, as provided in Section 7.4(d3.4(d), and each such representative 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 Agent Trustee (and other trustees appointed pursuant to this Agreement) for any unpaid Collateral Agent Trustee Fees (including as provided in Section 5.3) due or past due and then to any Secured Party which that has theretofore advanced or paid any Collateral Agent 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 (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent 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 Agent Trustee Fees other than such administrative expenses described in clause First aboveexpenses, 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 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 PartiesInstruments 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 then due equal to the unpaid principal and owing unpaid interest on and remaining unpaid in premium and other charges, if any, with respect of to the Secured Obligations, pro rata among the and all other amounts constituting Secured Parties Obligations (including but not limited to which such Obligations are then due indemnities and owing based on the respective amounts thereofpayments for increased costs), until such Obligations are paid or cash collateralized (in each case to the extent not then 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; Fourth (this clause being applicable only if an Event of Default shall have occurred and be continuing): Fifth: all other amounts owed to Secured Parties in any capacity pursuant to the Secured Parties, the amount of unpaid principal, interest, fees, charges, costs Instruments 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 fullconstituting Secured Obligations; and FifthSixth: any balance surplus then 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 Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the samesame or as a court of competent jurisdiction may direct.
(c) The term “unpaid” as used in clauses Third and Fourth of Section 7.4(b3.4(b) refers:
(i) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), refers to all amounts of the Secured Obligations outstanding as of a Distribution Date, and
(ii) during , in the pendency case of a bankruptcy proceeding an Insolvency Proceeding, with respect to the relevant Grantor(s)any Grantor, to all whether or not such 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 a basis for distribution (including estimated amounts, if any, are allowed in respect of contingent claims)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 Agent Trustee shall make all payments and distributions under this Section 7.4 3.4 on account of Restructuring Note Obligations to the Administrative AgentRestructuring Note Indenture Trustee, pursuant to written directions of the Administrative AgentRestructuring Note Indenture Trustee, for re-distribution in accordance with the provisions of the Credit AgreementRestructuring Note Documents; and (ii) on account of any New Money Note Obligations to the New Money Note Indenture Trustee, pursuant to written directions of the New Money Note Indenture Trustee, for re-distribution in accordance with the provisions of the New Money Note Documents.
Appears in 1 contract
Application of Moneys. (a) The Collateral Agent Trustee shall have the right at any time to apply moneys of Navistar Financial held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Trustee’s Fees.
(b) All . Subject to Section 6.05, all remaining moneys held by the Collateral Agent Trustee in the Collateral Account or received by the Collateral Agent with respect to the Collateral while a Notice of Acceleration is in effect shall, to the extent available for distribution (it being understood that the Collateral Agent Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.4Section), be distributed by the Collateral Agent Trustee on each dates fixed by the 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 (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): 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 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 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 unpaid Trustee’s Fees other than such administrative expenses described in clause First aboveexpenses, 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; 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 such the Secured Parties in proportion to the unpaid amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid thereof on such Distribution Date; ThirdFifth: to the Secured Parties, the amount amounts equal to all other sums then due and owing and remaining unpaid payable in respect of the Secured Obligations, pro rata among including, without limitation, the costs and expenses of the Secured Parties to and their representatives which such Obligations are then due and owing based on payable under the respective amounts thereofrelevant Secured Instruments as of such Distribution Date and, until if such Obligations are paid or cash collateralized (moneys shall be insufficient to the extent not then due and payable) pay such sums in full; Fourth (this clause being applicable only if an Event of Default shall have occurred and be continuing): , then ratably to the Secured Parties, the amount of unpaid principal, interest, fees, charges, costs and expenses Parties in respect of the Obligations, pro rata among the Secured Parties holding proportion to 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 fullsums; and FifthSixth: any balance surplus then 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 Navistar Financial or to whomsoever may be lawfully entitled to receive the samesame 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.
(cb) The term “unpaid” as used in clauses Third and clause Fourth of Section 7.4(bsubsection (a) above and in subsection (c) below, with respect to any Secured Obligations, refers:
(i) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s)Navistar Financial, to all amounts of the such Secured Obligations outstanding as of a Distribution Date, and
(ii) during the pendency of a bankruptcy proceeding with respect to the relevant Grantor(s)Navistar Financial, to all amounts allowed (within the meaning of Title 11 of the United States Code entitled “Bankruptcy”) which have not been disallowed by the bankruptcy court in respect of the such Secured Obligations as a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that prior distributions (whether actually distributed or set aside pursuant to Section 6.05) have not been made in respect thereof.
(dc) 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 Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations term “Catch-up Amount” means, with respect to any Secured Instrument, the amount, if any, required to be distributed to the Administrative AgentSecured Party or Parties in respect of Secured Obligations thereunder, pursuant so that, immediately after such distribution, the ratio of (i) all amounts theretofore distributed hereunder to directions such Secured Party or Parties in respect of such Secured Instrument to (ii) the Administrative Agentunpaid amount then due and payable to such Secured Party or Parties thereunder plus the amount of all distributions theretofore made hereunder in respect thereof, for re-distribution is equal to the highest ratio of (x) all amounts theretofore distributed hereunder in accordance respect of any other Secured Instrument to (y) the unpaid amount then due and payable to the Secured Party or Parties with respect thereto plus the provisions amount of the Credit Agreementall distributions theretofore made hereunder in respect thereof.
Appears in 1 contract
Samples: Security, Pledge and Trust Agreement (Navistar International Corp)
Application of Moneys. (a) The Collateral Agent shall have the right at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Fees.
(b) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the Collateral while a Notice of Acceleration is in effect shall, to the extent available for distribution (it being 8 understood that the Collateral Agent may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.4subsection 3.4), be distributed by the 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): priority: First: to the Collateral Agent for any unpaid amounts equal to all sums which constitute unreimbursed costs and expenses of the Collateral Agent Fees and then its representatives incurred under or in connection with this Collateral Agency Agreement or the Security Agreement; Second: to any the Secured Party Parties amounts equal to all sums which has theretofore advanced or constitute unreimbursed costs and expenses of such Secured Parties paid any to the Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) of or in connection with this Collateral Agency Agreement or the Bankruptcy CodeSecurity Agreement; Third: to the Secured Parties, in an amount equal to the unpaid principal or face amount thereof so advanced of, and unpaid interest on and fees or paid charges, if any, in respect of, the Obligations then outstanding held by such the Secured Party Parties whether or not then due and for which such Secured Party has not been reimbursed prior to such Distribution Date, 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 the Secured Parties in proportion to the unpaid amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid thereof on such Distribution Date; Secondand Fourth: to any the Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses described in clause First aboveParties, an amount amounts equal to all other sums which constitute Obligations held by the amount thereof so advanced or paid by such Secured Party Parties, including without limitation the costs and for expenses of the Secured Parties and their representatives which such Secured Party has not been reimbursed prior to are due and payable under the relevant Loan Agreement and which constitute Obligations as of such Distribution Date, and, if such moneys shall be insufficient to pay such amounts sums 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 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 fullsums; and Fifth: any balance surplus then 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 Pledgor or its successors or assigns 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) 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 same or as a basis for distribution (including estimated amounts, if any, allowed in respect court of contingent claims), to the extent that prior distributions have not been made in respect thereofcompetent jurisdiction may direct.
(d) The Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations to the Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.
Appears in 1 contract
Samples: Collateral Agency Agreement (Cogen Technologies Inc)
Application of Moneys. (a) The Collateral Agent shall have the right at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Fees.
(b) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the Restricted Collateral (other than (i) the Capital Stock of Agere and (ii) in the event that Agere or any of its Subsidiaries is required to enter into the Guarantee and Collateral Agreement pursuant to Section 5.11 of any of the Credit Agreements, any Restricted Collateral of Agere and its Subsidiaries) 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 7.43.4), 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 to the respective representatives for the Secured Parties as provided in Section 7.4(d3.4(g), and each such representative the applicable Administrative Agent shall be responsible for insuring that amounts distributed to it are distributed to its Secured Parties Lenders 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 aboveexpenses, 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 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that 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 Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.the
Appears in 1 contract
Samples: Collateral Sharing Agreement (Lucent Technologies Inc)
Application of Moneys. (a) The Collateral Agent Trustee shall have the right (pursuant to Section 4.7) at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Trustee Fees. The Collateral Agent FeesTrustee shall provide written notice to the Company of any such applications of moneys.
(b) All remaining moneys held by the Collateral Agent Trustee in the Collateral Account or received by the Collateral Agent with respect to the Collateral while a Notice of Acceleration is in effect shall, to the extent available for distribution (it being understood that the Collateral Agent Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.43.4(b)) and unless otherwise directed by the Directing Parties, as provided herein, be distributed (subject to the provisions of Sections 3.5 and 3.7) by the Collateral Agent Trustee on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent Trustee to the respective representatives Primary Holder Representatives for the Secured Parties entitled thereto and the Secured Hedge Providers, as provided in Section 7.4(d3.4(d), and each such representative 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 Agent Trustee (and other trustees appointed pursuant to this Agreement) for any unpaid Collateral Agent Trustee Fees (including as provided in Section 5.3) and then to any Secured Party which that has theretofore advanced or paid any Collateral Agent 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 (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent 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 Agent Trustee Fees other than such administrative expenses described in clause First aboveexpenses, 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 Trustee 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 any Primary Holder Representative for any unpaid in respect of the Obligations, pro rata among the Secured Parties expenses payable 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 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): Person pursuant to the Secured PartiesInstruments and, the amount of unpaid principal, interest, fees, charges, costs and expenses in respect of the Obligations, pro rata among the Secured Parties holding if such Obligations based on the respective moneys shall be insufficient to pay such 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 then ratably to such Persons in proportion 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all unpaid amounts of the Obligations outstanding as of a thereof on such Distribution Date, and
(ii) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that 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 Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.;
Appears in 1 contract
Samples: Collateral Trust and Intercreditor Agreement (American Capital, 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) The Collateral Agent shall (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 the right at any time extent attributable, in the 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 extent attributable in the opinion of the Trustee to a particular Series of the Notes issued by the relevant Issuer or which are apportioned to such Series as aforesaid, be held by the Trustee upon trust to apply moneys held by it them (subject to Clause 12): FIRST in the Collateral Account to the payment or satisfaction of all amounts then due and unpaid Collateral Agent Fees.
(bunder Clauses 15 and/or 16(J) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the Collateral shall, to the extent available for distribution (it being understood that the Collateral Agent may liquidate investments prior to maturity Trustee and/or any Appointee; SECONDLY in order to make a distribution pursuant to this Section 7.4), be distributed by the Collateral Agent on each Distribution Date in the following order or towards payment pari passu and rateably 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), all principal 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 interest then due and owing and remaining unpaid in respect of the Obligations, pro rata among the Secured Parties to which such Obligations are Notes of that Series; THIRDLY in or towards payment pari passu and rateably of all principal and interest then due and owing based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the 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 Notes of each other Series issued by 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 fullrelevant Issuer; and Fifth: any FOURTHLY in payment of the 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.
(cif any) The term “unpaid” as used in clauses Third and Fourth of Section 7.4(b) refers:
(i) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s)Issuer (without prejudice to, or liability in respect of, any question as to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) during the pendency of a bankruptcy proceeding with respect how such payment to the relevant Grantor(sIssuer shall be dealt with as between the relevant Issuer and any other person), PROVIDED ALWAYS that any payment required to all amounts allowed (within the meaning of Title 11 of the United States Code entitled “Bankruptcy”) be made by the bankruptcy court 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 Obligations as a basis for distribution (including estimated amounts, if any, allowed relevant Issuer which have become void or in respect of contingent claims)which claims have been prescribed under Condition 9, to the extent that prior distributions have not been made in respect thereofTrustee will hold such moneys on the above trusts.
(d) The Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations to the Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.
Appears in 1 contract
Samples: Trust Deed (Telecom Italia S P A)
Application of Moneys. (a) The Collateral Agent shall have the right at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Fees.
(b) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the 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 7.4), be distributed by the 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 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 the 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 clause Third and Fourth of Section 7.4(b) refers:
(i) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that 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 Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (Dex Media East LLC)
Application of Moneys. (a) The Collateral Agent shall have the right (pursuant to Section 4.6) at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Fees. Notwithstanding anything to the contrary contained herein, the Collateral Agent shall, pursuant to Requisite Instructions, transfer money held by it in the Collateral Account to any depository bank of any Obligor in accordance with any control agreement entered into with such depository bank pursuant to the Collateral Agreement, solely to reimburse such depository bank for checks, ACH transfers and other items which are recalled, dishonored, reversed or returned to such depository bank in respect of any deposit account subject to any such control agreement.
(b) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the Collateral while an Event of Default exists 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 7.43.4), be promptly 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 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): 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 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 Datepreviously reimbursed; Second: to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses described in clause First aboveexpenses, 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 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that 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 Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.previously reimbursed;
Appears in 1 contract
Samples: Collateral Trust Agreement (Advanced Micro Devices Inc)
Application of Moneys. All moneys received by the Trustee under these presents (including any moneys which represent principal or interest in respect of Notes or Coupons which have become void under Condition 17) shall, unless and to the extent attributable, in the 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 extent attributable in the opinion of the Trustee to a particular Series of the Notes issued by the Issuer or which are apportioned to such Series as aforesaid, shall be held by the Trustee upon trust to apply them (subject to Clause 7, 8 and 12) as follows:
(a) The Collateral Agent shall have the right at any time to apply moneys held by it FIRST in the Collateral Account to the payment or satisfaction of all amounts then due and unpaid Collateral Agent Fees.under Clauses 16 and/or 17(j) to the Trustee and/or any Appointee;
(b) SECONDLY, only if Regulatory Capital Requirement (Principal), Regulatory Capital Requirement (All remaining Amounts) or Solvency Condition is specified as being applicable in the Final Terms (in the case of moneys held 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) 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 Collateral Agent in the Collateral Account or Trustee on receipt of any such moneys if it has not been received by the Collateral Agent with respect Trustee prior thereto), in return to the Collateral shallIssuer or, as the case may be, the Guarantor of the whole or such part of such payment (after any necessary deductions pursuant to the extent available 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 distribution (the purposes of the Issuer's or the Guarantor’s obligations under these presents as if it being understood that the Collateral Agent may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.4), be distributed had not been paid by the Collateral Agent on each Distribution Date 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 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)Final Terms, 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 interest 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 Arrears of any one over any otherInterest) 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 ObligationsNotes of that Series;
(d) FOURTHLY, pro rata among 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 Secured Parties to which Final Terms, interest on such Obligations are Arrears of Interest) then due and owing based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the 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 ObligationsNotes of each other Series save that, pro rata among where at the Secured Parties holding 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 Obligations based 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 respective amounts thereof, until such Obligations are paid or cash collateralized (Trustee prior thereto) there shall be returned to the extent not 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 paragraph towards payment pari passu and rateably of all (i) principal and interest then due and payableunpaid (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 full; respect of such Notes 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 purpose of Clause 7 and, if applicable, Clause 8, as the case may be, (and Fifth: any balance remaining after money so returned shall be treated for the Obligations shall have purposes of the Issuer's or the Guarantor’s obligations under these presents as if it had not been paid or cash collateralized in fullby the Issuer or, no Existing Letters of Credit as the case may be, the Guarantor and its original payment shall be outstanding and deemed not to have discharged 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding obligations of the Issuer or, as of a Distribution Datethe case may be, the Guarantor under these presents); and
(iie) during FIFTHLY in payment of the pendency of a bankruptcy proceeding with respect balance (if any) to the relevant Grantor(sIssuer (without prejudice to, or liability in respect of, any question as to how such payment to the Issuer shall be dealt with as between the Issuer and any other person). Without prejudice to this Clause 11, to all amounts allowed (within if the meaning of Title 11 of the United States Code entitled “Bankruptcy”) by the bankruptcy court Trustee holds any moneys which represent principal or interest in respect of Notes or Coupons issued by the Obligations as a basis for distribution (including estimated amountsIssuer which have become void under Condition 17, if any, allowed in respect of contingent claims), to the extent that prior distributions have not been made in respect thereofTrustee will hold such moneys on the above trusts.
(d) The Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations to the Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.
Appears in 1 contract
Samples: Supplemental Trust Deed
Application of Moneys. (a) The Collateral Agent shall have the right at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Fees.
(b) All remaining moneys held by the Collateral Agent Trustee in the Collateral Account or received by the Collateral Agent Trustee with respect to the Collateral while a Notice of Acceleration is in effect shall, to the extent available for distribution (it being understood that the Collateral Agent Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.4subsection 3.4), be distributed (subject to the provisions of subsections 3.5 and 3.6) by the Collateral Agent Trustee on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent Trustee to the respective representatives Holder Representatives, if applicable, for the Secured Parties entitled thereto as provided in Section 7.4(dsubsection 3.4(c), and each such representative 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): FirstFIRST: to the Collateral Agent Trustee for any unpaid Collateral Agent Trustee Fees and then to any Secured Party Party, which has theretofore advanced or paid any Collateral Agent 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 (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; SecondSECOND: to any Secured Party which has theretofore advanced or paid any Collateral Agent Trustee Fees other than such administrative expenses described in clause First aboveexpenses, 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 Trustee 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 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that 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 Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.;
Appears in 1 contract
Application of Moneys. (a) The Collateral Agent Trustee shall have the right (pursuant to subsection 4.6) at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Trustee Fees. The Collateral Agent FeesTrustee shall provide written notice to the Company of any such application of moneys.
(b) All remaining moneys held by the Collateral Agent Trustee in the Collateral Account while a Notice of Event of Default is in effect and all proceeds of Collateral received in connection with any Collateral Enforcement Action (including as a result of any collection, sale, foreclosure or received by the other realization or distribution of or in respect of any Collateral Agent with respect to the Collateral (whether or not expressly characterized as such) or in any Insolvency Proceeding (including any adequate protection payments), shall, to the extent available for distribution (it being understood that the Collateral Agent Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.4subsection 3.4(b)), be distributed (subject to the provisions of subsections 3.4(c), 3.5, 3.7 and 8.2(f)) by the Collateral Agent Trustee on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent Trustee to the respective representatives Holder Representative for the Secured Parties entitled thereto as provided in Section 7.4(dsubsection 3.4(d), and each such representative 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 belowin the Secured Instruments in respect of which it acts as Holder Representative): First: to the Collateral Agent Trustee or any Co-Collateral Trustee or agent of the Collateral Trustee for any unpaid Collateral Agent Trustee Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Trustee Fees constituting administrative expenses allowable under Section 503(b) of the Bankruptcy CodeCode or any similar provision of any other applicable Bankruptcy Law, 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 and perform 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 Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Second: to the First Priority Agent and any Holder Representative ratably for any unpaid fees, costs, indemnities and expenses payable to it in its capacity as a Holder Representative pursuant to the First Priority Debt Documents to the extent the same constitute First Priority Secured Obligations and the Existing Sprint Spectrum Indenture; Third: to any Secured Party which has theretofore advanced or paid any Collateral Agent Trustee Fees other than such administrative expenses described in clause First aboveexpenses, 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 and perform 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 Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; ThirdFourth: to the holders of First Priority Secured PartiesObligations in an amount equal to the unpaid principal and unpaid interest on and premium and other charges, if any, with respect to the First Priority Secured Obligations and any primary obligations to pay principal, lease payments, guarantee payments, interest, reimbursement obligations, repurchase amounts in respect of transferred assets, fees, prepayment premiums, liquidated damages or termination payments constituting First Priority Initial Spectrum Obligations, the amount then due and owing and remaining unpaid of cash collateral required in respect of the Obligationsoutstanding letters of credit, pro rata among the Secured Parties to which such termination amounts in respect of Designated Hedging Obligations are then that constitute Permitted First Priority Non-Loan Exposure, amounts due in respect of Designated Cash Management Obligations that constitute Permitted First Priority Non-Loan Exposure, amounts due in respect of Designated L/C Facility Obligations that constitute Permitted First Priority Non-Loan Exposure, and owing based on the respective amounts thereofinterest and fees thereon, until such Obligations are paid or cash collateralized (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 and perform in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date; provided, that following the commencement of any Insolvency Proceeding with respect to any Grantor, solely as among the holders of First Priority Secured Obligations and solely for purposes of this clause “Fourth” and not any other First Priority Debt Documents, in the event the value of the Collateral is not sufficient for the entire amount of Post-Petition Interest on the First Priority Secured Obligations to be allowed under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency Proceeding, the amount of First Priority Secured Obligations of each series of First Priority Secured Obligations shall include only the maximum amount of Post-Petition Interest on the First Priority Secured Obligations allowable under Section 506(a) and (b) of the Bankruptcy Code or any other applicable provision of the Bankruptcy Code or other Bankruptcy Law in such Insolvency Proceeding; 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 (but excluding amounts referenced in clause “Fourth” above), 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 and perform in full, then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date; Sixth: after the payment in full of all First Priority Secured Obligations, to the holders of Junior Priority Secured Obligations in an amount equal to all Junior Priority Secured Obligations which have not been paid, including termination amounts in respect of Designated Hedging Obligations that constitute Permitted Junior Priority Non-Loan Exposure, amounts due in respect of Designated Cash Management Obligations that constitute Permitted Junior Priority Non-Loan Exposure and all other Junior 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 such Junior Priority Secured Obligations) then outstanding, in each case to the extent then due and payable) in full; Fourth (this clause being applicable only , as of such Distribution Date, and, if an Event of Default such moneys shall have occurred be insufficient to pay such amounts 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 perform in full, no Existing Letters then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date; and Seventh: after the payment in full of Credit shall be outstanding and all Junior Priority Secured Obligations, any Incremental Revolving Commitments shall have been terminated surplus then remaining shall be paid over to the Borrower Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the samesame or as a court of competent jurisdiction may direct.
(c) Notwithstanding anything to the contrary above, the proceeds of any Specified Collateral shall be distributed (in the manner set forth above) solely to Secured Parties that are holders of the applicable Specified First Priority Secured Obligations and shall not be distributed to any other Secured Party.
(d) The term “unpaid” as used in clauses Third and Fourth of Section 7.4(bsubsection 3.4(b) refers:
(i) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), refers to all amounts of First Priority Secured Obligations or Junior Priority Secured Obligations, as the Obligations outstanding case may be, Outstanding as of a Distribution Date, whether or not such amounts are fixed or contingent, and
(ii) during , in the pendency case of a bankruptcy proceeding an Insolvency Proceeding, with respect to the relevant Grantor(s)any Grantor, to all whether or not such 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 a basis for distribution (including estimated amounts, if any, are allowed in respect of contingent claims)such Insolvency Proceeding, to the extent that prior distributions (whether actually distributed or set aside pursuant to subsection 3.5) have not been made in respect thereof.
(de) The Collateral Agent Trustee shall make all payments and distributions under this Section 7.4 subsection 3.4: (i) on account of First Priority Secured Obligations to the Administrative Agenteach applicable Holder Representative, pursuant to directions of the Administrative Agentpayment instructions and information supplied by such Holder Representative, for re-distribution in accordance with the provisions of this Collateral Trust Agreement; (ii) on account of Junior Priority Secured Obligations, to each applicable Holder Representative, pursuant to payment instructions and information supplied by such Holder Representative, in accordance with the Credit provisions of this Collateral Trust Agreement, and (iii) on account of any other Secured Obligation, to the relevant Secured Party based on the payment instructions and information supplied to the Collateral Trustee by the relevant Secured Party or the Company pursuant to subsection 7.1. If any Holder Representative or any holder of any Secured Obligations collects or receives any proceeds of such foreclosure, collection or other enforcement that was not, and should have been, applied to the payment of the Secured Obligations in accordance with clauses (a) and (b) of subsection 3.4, whether after the commencement of an Insolvency Proceeding or otherwise, such Holder Representative or such holder of Secured Obligations, as the case may be, will forthwith deliver the same to the Collateral Trustee, for the account of the holders of the Secured Obligations, to be applied in accordance with clauses (a) and (b) of subsection 3.4. Until so delivered, such proceeds will be held by that Debt Representative or that holder of Secured Obligations, as the case may be, for the benefit of the holders of the Secured Obligations.
Appears in 1 contract
Samples: Collateral Trust and Intercreditor Agreement (T-Mobile US, Inc.)
Application of Moneys. 10.1 All moneys received or recovered by the Security Agent pursuant to this Agreement or the powers conferred by it shall (subject to (a) The Collateral the claims of any Person having prior rights thereto and (b) Clause 10.2) be applied by the Security Agent shall have (notwithstanding any purported appropriation by the right Company or any other Grantor) in accordance with Clause 9 (Disposal and Insurance Proceeds) or, as the case may be, Clause 15 (Application of Proceeds) of the Deed of Appointment and Priority.
10.2 Notwithstanding any other provision of the Finance Documents, the Security Agent may, at any time to apply moneys held by it in after the Collateral Account delivery of an Enforcement Notice to the payment Company, pay any or all of due and unpaid Collateral Agent Fees.
(b) All remaining the moneys held received, recovered or realised by the Collateral Security Agent in under this Agreement (including without limitation the Collateral Account proceeds of any conversion of currency) into any suspense or received by impersonal account (which is interest-bearing provided that there is no tax liability on the Collateral Security Agent with respect to any interest in such account) for so long as the Collateral shall, to the extent available for distribution Security Agent shall think fit (it being understood that the Collateral Agent may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.4), be distributed by the 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 whether or not 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 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 become due) pending any further application of Credit such moneys (as the Security Agent 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s)entitled, but not obliged, to all amounts of the Obligations outstanding as of a Distribution Date, and
(iido in its discretion) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that 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 Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of Clause 10.1. If the Credit AgreementSecured Obligations have been fully discharged or would be fully discharged if the moneys in such suspense or impersonal account were applied towards satisfaction of the Secured Obligations, the Security Agent shall apply the moneys in such suspense or impersonal account towards satisfaction of the Secured Obligations and if there are any moneys remaining in such suspense or impersonal account after the Secured Obligations have been fully discharged, the Security Agent shall pay such remaining moneys to any Person as directed by the Company. Any interest accrued on any moneys in such suspense or impersonal account shall be credited to such suspense or, as the case may be, impersonal account and shall subject to the terms of this Clause 10.2, be applied towards satisfaction of the Secured Obligations.
Appears in 1 contract
Application of Moneys. ALL moneys received by the Trustee under these presents shall, unless and to the extent attributable in the opinion of the Trustee to a particular series of the Securities, be apportioned pari passu and rateably between each series of the Securities, and all moneys received by the Trustee under these presents to the extent attributable in the opinion of the Trustee to a particular series of the Securities or which are apportioned to such series as aforesaid (aincluding any moneys which represent principal, premium or interest in respect of Securities or Coupons which have become void under Condition 11) The Collateral Agent shall have be held by the right at any time Trustee upon trust to apply moneys held by it them (subject to Clause 11): FIRST in the Collateral Account to the payment or satisfaction of all amounts then due and unpaid Collateral Agent Fees.
(bunder Clauses 14 and/or 15(J) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the Collateral shallTrustee and/or any Appointee; SECONDLY in or towards payment pari passu and rateably of all principal, to the extent available for distribution premium (it being understood that the Collateral Agent may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.4), be distributed by the 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), if any) 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 interest then due and owing and remaining unpaid in respect of the ObligationsSecurities of that series; THIRDLY in or towards payment pari passu and rateably of all principal, pro rata among the Secured Parties to which such Obligations are premium (if any) and interest then due and owing based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the 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 Securities of each other series; and FOURTHLY in payment of the Secured Parties holding such Obligations based on the respective amounts thereof, until such Obligations are paid or cash collateralized balance (if any) to the extent not then due and payable) Issuer (without prejudice to, or liability in full; and Fifth: respect of, any balance remaining after question as to how such payment to the Obligations shall have been paid or cash collateralized in full, no Existing Letters of Credit Issuer shall be outstanding dealt with as between the Issuer and any Incremental Revolving Commitments shall have been terminated shall be paid over other person). Without prejudice to this Clause 9, if the Borrower Trustee holds any moneys which represent principal, premium (if any) 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) 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 interest in respect of the Obligations as a basis for distribution (including estimated amounts, if any, allowed Securities which have become void or in respect of contingent claims)which claims have been prescribed under Condition 11, to the extent that prior distributions have not been made in respect thereofTrustee will hold such moneys on the above trusts.
(d) The Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations to the Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.
Appears in 1 contract
Application of Moneys. (a) The Collateral Agent Trustee shall have the right at any time to apply moneys of Navistar Financial held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Trustee’s Fees.
(b) All . Subject to Section 6.05, all remaining moneys held by the Collateral Agent Trustee in the Collateral Account or received by the Collateral Agent with respect to the Collateral while a Notice of Acceleration is in effect shall, to the extent available for distribution (it being understood that the Collateral Agent Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.4Section), be distributed by the Collateral Agent Trustee on each dates fixed by the 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 (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): 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 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 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 unpaid Trustee’s Fees other than such administrative expenses described in clause First aboveexpenses, 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; 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 such the Secured Parties in proportion to the unpaid amounts of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid thereof on such Distribution Date; ThirdFifth: to the Secured Parties, the amount amounts equal to all other sums then due and owing and remaining unpaid payable in respect of the Secured Obligations, pro rata among including, without limitation, the costs and expenses of the Secured Parties to and their representatives which such Obligations are then due and owing based on payable under the respective amounts thereofrelevant Secured Instruments as of such Distribution Date and, until if such Obligations are paid or cash collateralized (moneys shall be insufficient to the extent not then due and payable) pay such sums in full; Fourth (this clause being applicable only if an Event of Default shall have occurred and be continuing): , then ratably to the Secured Parties, the amount of unpaid principal, interest, fees, charges, costs and expenses Parties in respect of the Obligations, pro rata among the Secured Parties holding proportion to 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 fullsums; and FifthSixth: any balance surplus then 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 Navistar Financial or to whomsoever may be lawfully entitled to receive the samesame or as a court of competent jurisdiction may direct.
(cb) The term “unpaid” as used in clauses Third and clause Fourth of Section 7.4(bsubsection (a) above and in subsection (c) below, with respect to any Secured Obligations, refers:
(i) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s)Navistar Financial, to all amounts of the such Secured Obligations outstanding as of a Distribution Date, and
(ii) during the pendency of a bankruptcy proceeding with respect to the relevant Grantor(s)Navistar Financial, to all amounts allowed (within the meaning of Title 11 of the United States Code entitled “Bankruptcy”) which have not been disallowed by the bankruptcy court in respect of the such Secured Obligations as a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that prior distributions (whether actually distributed or set aside pursuant to Section 6.05) have not been made in respect thereof.
(dc) 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 Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations term “Catch-up Amount” means, with respect to any Secured Instrument, the amount, if any, required to be distributed to the Administrative AgentSecured Party or Parties in respect of Secured Obligations thereunder, pursuant so that, immediately after such distribution, the ratio of (i) all amounts theretofore distributed hereunder to directions such Secured Party or Parties in respect of such Secured Instrument to (ii) the Administrative Agentunpaid amount then due and payable to such Secured Party or Parties thereunder plus the amount of all distributions theretofore made hereunder in respect thereof, for re-distribution is equal to the highest ratio of (x) all amounts theretofore distributed hereunder in accordance respect of any other Secured Instrument to (y) the unpaid amount then due and payable to the Secured Party or Parties with respect thereto plus the provisions amount of the Credit Agreementall distributions theretofore made hereunder in respect thereof.
Appears in 1 contract
Application of Moneys. (a) The Collateral Agent shall have the right at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Fees.
(b) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the 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 7.4), be distributed by the 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 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 the 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that 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 Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (R H Donnelley Corp)
Application of Moneys. (a) The Collateral Agent Trustee shall have the right at any time to apply moneys of Navistar Financial held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Trustee’s Fees.
(b) All . Subject to Section 6.05, all remaining moneys held by the Collateral Agent Trustee in the Collateral Account or received by the Collateral Agent with respect to the Collateral while a Notice of Acceleration is in effect shall, to the extent available for distribution (it being understood that the Collateral Agent Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.4Section), be distributed by the Collateral Agent Trustee on each dates fixed by the 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 (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): 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 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 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 unpaid Trustee’s Fees other than such administrative expenses described in clause First aboveexpenses, 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; 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 amounts Catch-up Amounts in full, then ratably (without priority of any one over any other) to such Secured Parties ratably in proportion to the amounts of such Collateral Agent Fees advanced by the their 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 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that 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 Administrative Agent, pursuant to directions of the Administrative Agent, for reCatch-distribution in accordance with the provisions of the Credit Agreement.up Amounts;
Appears in 1 contract
Application of Moneys. ALL moneys received by the Trustee under these presents shall, unless and to the extent attributable in the opinion of the Trustee to a particular series of the Securities, be apportioned pari passu and rateably between each series of the Securities, and all moneys received by the Trustee under these presents to the extent attributable in the opinion of the Trustee to a particular series of the Securities or which are apportioned to such series as aforesaid (a) The Collateral Agent including any moneys which represent principal, premium or interest in respect of Securities or Coupons which have become void under Condition 9 shall have be held by the right at any time Trustee upon trust to apply moneys held by it them (subject to Clause 11): FIRST in the Collateral Account to the payment or satisfaction of all amounts then due and unpaid Collateral Agent Fees.
(bunder Clauses 14 and/or 15(J) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the Collateral shallTrustee and/or any Appointee; SECONDLY in or towards payment pari passu and rateably of all principal, to the extent available for distribution premium (it being understood that the Collateral Agent may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.4), be distributed by the 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), if any) 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 interest then due and owing and remaining unpaid in respect of the ObligationsSecurities of that series; THIRDLY in or towards payment pari passu and rateably of all principal, pro rata among the Secured Parties to which such Obligations are premium (if any) and interest then due and owing based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the 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 Securities of each other series; and FOURTHLY in payment of the Secured Parties holding such Obligations based on the respective amounts thereof, until such Obligations are paid or cash collateralized balance (if any) to the extent not then due and payable) Issuer (without prejudice to, or liability in full; and Fifth: respect of, any balance remaining after question as to how such payment to the Obligations shall have been paid or cash collateralized in full, no Existing Letters of Credit Issuer shall be outstanding dealt with as between the Issuer and any Incremental Revolving Commitments shall have been terminated shall be paid over other person). Without prejudice to this Clause 9, if the Borrower Trustee holds any moneys which represent principal, premium (if any) 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) 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 interest in respect of the Obligations as a basis for distribution (including estimated amounts, if any, allowed Securities which have become void or in respect of contingent claims)which claims have been prescribed under Condition 9, the Trustee will hold such moneys on the above trusts. Back to the extent that 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 Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.Contents
Appears in 1 contract
Samples: Trust Deed (United Utilities PLC)
Application of Moneys. (a) The Collateral Agent shall have the right at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Fees.
(b) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the 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 7.4), be distributed by the 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 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 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) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, and
(ii) 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 a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that 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 Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.
Appears in 1 contract
Samples: Credit Agreement (DEX ONE Corp)
Application of Moneys. 10.1 All moneys assigned to the Lender under the Earnings Assignment shall be paid to the Earnings Account.
10.2 Subject to the relevant provisions of the Revolving Loan Facility Agreement and the Bridge Loan Facility Agreement (aincluding, without limitation, clauses 14.1(I), (J) The Collateral and (K) of both those agreements) and to clause 10.4 hereof all moneys paid to the Earnings Account shall be applied by the Agent shall have as follows:-
(A) first in payment of any and all sums whatsoever certified by the right at any time Lender to apply moneys held by it the Agent to be due and payable to the Lender hereunder (such sums to be paid in such order as the Lender may in its sole discretion elect);
(B) second in retention in the Collateral Earnings Account of amounts equivalent in aggregate to the payment amount of interest next falling due and unpaid Collateral Agent Fees.to be paid hereunder; and
(bC) All remaining moneys held third in retention of any credit balance in the Earnings Account Provided That:-
(i) sums retained in the Earnings Account pursuant to clause 10.2(B) hereof shall be applied by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect towards payment to the Collateral shall, Lender of interest due hereunder on the due dates for payment thereof;
(ii) nothing herein contained shall be deemed to affect the extent available for distribution (it being understood that absolute obligation of the Collateral Agent may liquidate investments prior Borrower to maturity in order pay interest on and to make a distribution pursuant to this Section 7.4), be distributed by repay the 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 Loan as provided in Section 7.4(d), clauses 4 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: 5 hereof.
10.3 Subject to the Collateral Agent for any unpaid Collateral Agent Fees relevant provisions of the Revolving Loan Facility Agreement and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(bthe Bridge Loan Facility Agreement (including, without limitation, clauses 14.1(J) and (K) of the Bankruptcy Code, an amount equal both those agreements) and to clause 10.4 hereof all moneys payable to the amount thereof so advanced or paid Lender under the Insurance Assignment and any other moneys payable to the Lender 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 or more of the Security 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 under any one over any other) to such Secured Parties in proportion to the amounts or more of such Collateral Agent Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: to the Secured Partiesthis agreement, 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 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 Security Documents and any Incremental Revolving Commitments shall have been terminated other documents executed pursuant hereto or thereto the application of which is not specifically provided for by another clause hereof shall be paid over to the Lender's account with such bank or banks as the Lender may nominate from time to time and shall be applied by the Lender as follows:-
(A) all moneys received from a Total Loss or sale of the Vessel shall be applied as follows:-
(i) first in payment of any and all sums whatsoever due and payable to the Lender hereunder (such sums to be paid in such order as the Lender may in its sole discretion elect);
(ii) second in repayment of Repayment Instalments and accrued interest thereon in reverse order of maturity and in payment of any sums due to the Lender by virtue of that repayment under clause 8.5 hereof; and
(iii) third in payment of any credit balance to the Borrower or to whomsoever may be lawfully entitled to receive the same.thereto; and
(cB) The term “unpaid” all moneys not covered by clause 10.3
(A) hereof shall be applied as used in clauses Third and Fourth of Section 7.4(b) refers:follows:-
(i) first in the absence of a bankruptcy proceeding accordance with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, andclause 10.3(A)(i) hereof;
(ii) during second (in respect only of moneys received by virtue of the pendency of a bankruptcy proceeding with respect Insurance Assignment) in reimbursement to the Borrower (if not already reimbursed pursuant to the relevant Grantor(s), to all amounts allowed (within the meaning of Title 11 provisions of the United States Code entitled “Bankruptcy”Revolving Loan Facility Agreement and/or the Bridge Loan Facility Agreement) for such of the costs (if any) incurred by the bankruptcy court Borrower in effecting the repair of the damage in respect of which those moneys are received as the Obligations as a basis for distribution Lender shall approve (including estimated amounts, if any, allowed such approval not to be unreasonably withheld) and in payment to the Earnings Account of all moneys received in respect of contingent claimsloss of hire insurances (if any);
(iii) third in payment of Repayment Instalments and accrued interest thereon in reverse order of maturity and in payment of any sums due to the Lender by virtue of that repayment under clause 8.5 hereof; and
(iv) fourth in payment of any credit balance to the Borrower or to whomsoever may be entitled thereto.
10.4 Subject to the relevant provisions of the Revolving Loan Facility Agreement and the Bridge Loan Facility Agreement (including, without limitation, clauses 14.1(J) and (K) of both those agreements), from and after the giving of notice by the Lender to the extent that prior distributions have not been made in respect thereof.Borrower pursuant to clause 11.1 hereof all moneys whatsoever received or recovered by the Lender under any one or more of this agreement, the Security Documents and any other documents executed pursuant hereto or thereto and all moneys from time to time standing to the credit of the Earnings Account shall be paid to the Lender's account with such bank or banks as the Lender may nominate from time to time and shall be applied by the Lender as follows:-
(dA) The Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations to the Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution first in accordance with clause 10.3(A)(i) hereof, subject to any right the provisions Lender may have to delay any such application in order to maximise its claim; and
(B) second in payment of any credit balance to the Credit AgreementBorrower or to whomsoever may be entitled thereto.
Appears in 1 contract
Application of Moneys. 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 clause 10.4 hereof all moneys paid to the Earnings Account shall be applied by the Agent as follows:-
(aA) The Collateral first in payment of any and all sums whatsoever due and payable to the Agent shall have and/or the right at Trustee and/or any time one or more of the Lenders hereunder (such sums to apply moneys held by it be paid in such order as the Agent may in its sole discretion elect);
(B) second in retention in the Collateral Earnings Account of amounts equivalent in aggregate to the amount of interest next falling due to be paid hereunder;
(C) third in payment of due and unpaid Collateral Agent Fees.the costs (if any) incurred by the Borrower in the normal day to day business of operating the Vessel;
(bD) All remaining moneys fourth in accordance with the relevant provisions of the Bridge Loan Facility Agreement; and
(E) fifth in retention of any credit balance in the 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 Collateral 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 Collateral Account or received by due dates for payment thereof; and
(iii) nothing herein contained shall be deemed to affect the Collateral Agent with respect absolute obligation of the Borrower to the Collateral shall, pay interest on and 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 7.4), be distributed by the Collateral Agent on repay 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 Drawing as provided in Section 7.4(d), clauses 4 and each such representative shall be responsible for insuring that amounts distributed 5 hereof.
10.3 Subject to it are distributed to its Secured Parties in the order of priority set forth below): First: clause 10.4 hereof all moneys payable to the Collateral Agent for and/or the Trustee and/or the Lenders under the Insurance Assignment and any unpaid Collateral other moneys payable to the Agent Fees and then to and/or the Trustee and/or the Lenders by any Secured Party which has theretofore advanced one or paid any Collateral Agent Fees constituting administrative expenses allowable under Section 503(b) more 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 Security Parties under any one over any other) to such Secured Parties in proportion to the amounts or more 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 Partiesthis agreement, 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 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 Security Documents and any Incremental Revolving Commitments shall have been terminated other documents executed pursuant hereto or thereto the application of which is not specifically provided for by another clause hereof shall be paid over 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 clause 10.2(A) hereof;
(ii) second 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;
(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 Borrower or to whomsoever may be lawfully entitled to receive the same.thereto; and
(cB) The term “unpaid” all moneys not covered by clause 10.3
(A) hereof shall be applied as used in clauses Third and Fourth of Section 7.4(b) refers:follows:-
(i) first in the absence of a bankruptcy proceeding accordance with respect to the relevant Grantor(s), to all amounts of the Obligations outstanding as of a Distribution Date, andclause 10.2(A) hereof;
(ii) during second (in respect only of moneys received by virtue of the pendency of a bankruptcy proceeding with respect Insurance Assignment) in reimbursement to the relevant Grantor(s), to all amounts allowed (within the meaning of Title 11 Borrower for such of the United States Code entitled “Bankruptcy”costs (if any) incurred by the bankruptcy court Borrower in effecting the repair of the damage in respect of which those moneys are received as the Obligations as a basis for distribution Agent shall approve (including estimated amounts, if any, allowed such approval not to be unreasonably withheld) and in payment to the Earnings Account of all moneys received in respect of contingent claimsloss of hire insurances (if any), to the extent that prior distributions have not been made in respect thereof.;
(diii) The Collateral Agent shall make all payments and distributions under this Section 7.4 on account of Obligations to the Administrative Agent, pursuant to directions third in repayment of the Administrative AgentLoan, for re-distribution 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 Credit 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 or 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
Application of Moneys. (a) The Collateral Agent shall have the right at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Fees.
(b) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the 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 7.44.4), 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 (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): Firstpriority: 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 Bankruptcy 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 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; SecondSECOND: to any Secured Party which has theretofore advanced or paid any Collateral Agent Fees other than such administrative expenses described in clause First aboveexpenses, 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; ThirdTHIRD: to the Secured PartiesParties that hold Secured Obligations, the in an amount equal to all Secured Obligations then due and owing and remaining unpaid payable to them (including, without limitation, amounts in respect of the Obligationsletter of credit exposure), pro rata among the Secured Parties and, if such moneys shall be insufficient to which pay such Obligations are then due and owing based on the respective amounts thereof, until such Obligations are paid or cash collateralized (to the 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 then ratably (without priority of Credit shall be outstanding any one over any other) to such Secured Parties in proportion to the unpaid amounts thereof on such Distribution Date; and FOURTH: any Incremental Revolving Commitments shall have been terminated surplus then remaining shall be paid over to the Borrower Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the samesame or as a court of competent jurisdiction may direct.
(c) The term “unpaid” as used in clauses Third and Fourth Any distribution pursuant to clause THIRD of Section 7.4(bsubsection (b) refers:
(i) in the absence of a bankruptcy proceeding above with respect to the relevant Grantor(sundrawn amount of any outstanding letter of credit shall be paid to the Collateral Agent to be held in an account (the "Special Letter of Credit Cash Collateral Account") as collateral for the Senior Credit Agreement Lenders and disposed of as provided in this subsection (c), to all amounts . As of the Obligations outstanding 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 Distribution Datepayment is made to a beneficiary pursuant to a draw on a letter of credit, and
the Collateral Agent shall distribute to the Administrative Agent from the amounts held pursuant to this subsection (iic) during for application to the pendency payment of a bankruptcy proceeding the reimbursement obligation due to the Senior Credit Agreement Lenders with respect to such draw an amount equal to the relevant Grantor(sproduct of (1) the total amount then held in the Special Letter of Credit Cash Collateral Account pursuant to this subsection (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 all amounts allowed (within such draw. On each date after which a reduction in the meaning undrawn amount of Title 11 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 United States Code entitled “Bankruptcy”) by the bankruptcy court in respect of the Obligations as a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that 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 distribute to the Administrative Agent, Agent from the amounts held pursuant to directions this subsection (c) an amount equal to the product of (1) the Administrative Agenttotal amount then held in the Special Letter of Credit Cash Collateral Account pursuant to this subsection (c) and (2) a fraction, for re-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 no letters of credit are outstanding, any remaining amount held in the Special Letter of Credit Cash Collateral Account pursuant to this subsection (c), after the distribution therefrom as provided above, shall be distributed as provided in accordance with the provisions of the Credit Agreementsubsection (b) above.
Appears in 1 contract
Samples: Collateral Sharing Agreement (Vitas Healthcare of Texas, L.P.)
Application of Moneys. (a) The Collateral Agent Trustee shall have the right (pursuant to Section 4.7) at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Trustee Fees. The Collateral Agent Fees.
(b) Trustee shall provide written notice to the Company of any such applications of moneys. All remaining moneys held by the Collateral Agent Trustee in the Collateral Account or received by the Collateral Agent with respect to the Collateral while a Notice of Acceleration is in effect shall, to the extent available for distribution (it being understood that the Collateral Agent Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.43.4(b)) and unless otherwise directed by the Directing Parties, as provided herein, be distributed (subject to the provisions of Sections 3.5 and 3.7) by the Collateral Agent Trustee on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent Trustee to the respective representatives Primary Holder Representatives for the Secured Parties entitled thereto and the Secured Hedge Providers, as provided in Section 7.4(d3.4(d), and each such representative 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 Agent Trustee (and other trustees appointed pursuant to this Agreement) for any unpaid Collateral Agent Trustee Fees (including as provided in Section 5.3) and then to any Secured Party which that has theretofore advanced or paid any Collateral Agent 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 (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent 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 Agent Trustee Fees other than such administrative expenses described in clause First aboveexpenses, 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 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 PartiesInstruments 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 (including, without limitation, the amount then due and owing and remaining unpaid obligation to cash collateralize undrawn letters of credit) with respect to the Secured Obligations, outstanding termination amounts in respect of the Hedging Obligations, pro rata among the interest and fees thereon and all other amounts constituting Secured Parties Obligations (including but not limited to which such Obligations are then due indemnities and owing based on the respective amounts thereofpayments for increased costs), until such Obligations are paid or cash collateralized (in each case to the extent not then the same are due and payable) in full; Fourth (this clause being applicable only , as of such Distribution Date, and, if an Event of Default such moneys shall have occurred and be continuing): insufficient 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 pay 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 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 Incremental Revolving Commitments shall have been terminated surplus then remaining shall be paid over to the Borrower Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the same.
(c) same or as a court of competent jurisdiction may direct. The term “unpaid” as used in clauses Third and Fourth of Section 7.4(b3.4(b) refers:
(i) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), refers to all amounts of the Secured Obligations outstanding as of a Distribution Date, whether or not such amounts are fixed or contingent, and
(ii) during , in the pendency case of a bankruptcy proceeding an Insolvency Proceeding, with respect to the relevant Grantor(s)any Grantor, to all whether or not such 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 a basis for distribution (including estimated amounts, if any, are allowed in respect of contingent claims)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 Agent Trustee shall make all payments and distributions under this Section 7.4 3.4 (i) on account of Credit Agreement Obligations to the Administrative AgentCredit Agreement Representative, pursuant to directions of the Administrative AgentCredit Agreement Representative, for re-distribution in accordance with the provisions of the Credit Agreement; (ii) on account of any 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 Company 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) The Collateral Agent shall have the right at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent Fees.
(b) All remaining moneys held by the Collateral Agent in the Collateral Account or received by the Collateral Agent with respect to the Restricted 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 7.43.04), 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 (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): 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 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 aboveexpenses, 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 PartiesParties that are Term Lenders and hold Term Loan Obligations which constitute Restricted Secured Indebtedness, the an amount equal to all Term Loan Obligations constituting Restricted Secured Indebtedness then due and owing and remaining unpaid in respect of the Obligationsto them, 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 whether or cash collateralized (to the extent not then due and payable) , and, if such moneys shall be insufficient to pay such amounts in full; Fourth , then ratably (this clause being applicable only if an Event without priority of Default shall have occurred and be continuing): any one over any other) to such Secured Parties in proportion to the Secured Parties, the amount of unpaid principal, interest, fees, charges, costs and expenses in respect of the Obligations, pro rata among amounts thereof on such Distribution Date; Fourth: to the Secured Parties holding such all other Restricted Collateral Obligations, amounts equal to all other sums which constitute Restricted Collateral Obligations based on the respective amounts thereofthen owing to them, until such Obligations are paid whether or cash collateralized (to the extent 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 balance surplus then 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 Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the samesame or as a court of competent jurisdiction may direct.
(c) The term “unpaid” as used in clauses Third and Fourth of Section 7.4(b) refers:
(i) All remaining moneys held by the Collateral Agent in the absence of a bankruptcy proceeding Collateral Account received by the Collateral Agent with respect to the relevant Grantor(sUnrestricted 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 all amounts 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 Obligations outstanding as of a 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 (iiwithout priority of any one over any other) during the pendency of a bankruptcy proceeding with respect to such Secured Parties in proportion to the relevant Grantor(s)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, in an amount equal 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 Term Loan Obligations as a basis for distribution (including estimated amountsthen owing to them, whether or not then due and payable, and, if anysuch moneys shall be insufficient to pay such amounts in full, allowed then ratably (without priority of any one over any other) to such Secured Parties in respect of contingent claims), proportion to the extent that prior distributions have not been made in respect thereof.
(d) The Collateral Agent shall make all payments and distributions under this Section 7.4 unpaid amounts thereof on account of Obligations to the Administrative Agent, pursuant to directions of the Administrative Agent, for re-distribution in accordance with the provisions of the Credit Agreement.such Distribution Date;
Appears in 1 contract
Samples: Collateral Sharing Agreement (Crown Cork & Seal Co Inc)
Application of Moneys. (a) The Collateral Agent Trustee shall have the right (pursuant to Section 4.07) at any time to apply moneys held by it in the Trust Collateral Account to the payment of due and unpaid Collateral Agent Trustee Fees.
(b) All remaining moneys held by the Collateral Agent Trustee in the Trust Collateral Account or received by the Collateral Agent with respect to the Collateral Trustee while an Applicable Notice of Event of Default is in effect shall, to the extent available for distribution (it being understood that the Collateral Agent Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.43.04), be distributed (subject to the provisions of Section 3.05) by the Collateral Agent Trustee 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): priority: First: to the Collateral Agent Trustee for any unpaid Collateral Agent Trustee Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent Trustee Fees constituting (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 Agent 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 Agent Trustee Fees other than such administrative expenses 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 Trustee Fees advanced by the respective Secured Parties and remaining unpaid on such Distribution Date; Third: subject to Section 6.16, to the Secured PartiesFirst Priority Representatives in an amount equal to the unpaid amount of the First Priority Obligations then outstanding, the amount whether or not then due and owing payable (including without limitation amounts required to cash collateralize undrawn letters of credit and remaining other contingent obligations that are First Priority Obligations); Fourth: to the Second Priority Representative in an amount equal to the unpaid in respect amount of the Obligations, pro rata among the Secured Parties to which such Second Priority Obligations are then due and owing based on the respective amounts thereof, until such Obligations are paid outstanding whether or cash collateralized (to the 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 surplus then 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 applicable Loan Parties or their successors or assigns or to whomsoever may be lawfully entitled to receive the samesame or as a court of competent jurisdiction may direct.
(c) The term “‘‘unpaid” as used in clauses Third Third, Fourth and Fourth Fifth of Section 7.4(b3.04(b) refers:
(i) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(sLoan Party(s), to all amounts of the applicable Secured Obligations outstanding as of a Distribution Date, and
(ii) during the pendency of a bankruptcy proceeding with respect to the relevant Grantor(sLoan Party(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 applicable Secured Obligations as a basis for distribution (including estimated amounts, if any, allowed in respect of contingent claims), to the extent that prior distributions have not been made in respect thereof.
(d) The Collateral Agent shall make all Any payments and or distributions received by any Representative under this Section 7.4 on account of Obligations to the Administrative Agent, pursuant to directions of the Administrative Agent, 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 on deposit in any Letter of Credit AgreementAccount shall be applied first, to reimburse each Fronting Bank for any then drawn but unreimbursed amounts in respect of the related Letters of Credit and, second, to cash collateralize any then outstanding related Letters of Credit in accordance 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
Application of Moneys. (a) The Collateral Agent Trustee shall have the right (pursuant to Section 4.6) at any time to apply moneys held by it in the Collateral Account to the payment of due and unpaid Collateral Agent FeesTrustee Fees without any requirement that such applications be made ratably from such accounts.
(b) All remaining moneys held by the Collateral Agent Trustee in the Collateral Account or while a Notice of Acceleration has been received by the Collateral Agent with respect to the Collateral Trustee, is effective, and remains in effect shall, to the extent available for distribution (it being understood that the Collateral Agent Trustee may liquidate investments prior to maturity in order to make a distribution pursuant to this Section 7.43.4(b)), be distributed (subject to the provisions of Sections 3.5 and 3.7) by the Collateral Agent Trustee on each Distribution Date in the following order of priority (with such distributions being made by the Collateral Agent Trustee to the respective representatives Holder Representatives for the Secured Parties entitled thereto as provided in Section 7.4(d3.4(d), and each such representative 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 Agent Trustee for any unpaid Collateral Agent Trustee Fees and then to any Secured Party which has theretofore advanced or paid any Collateral Agent 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 (without priority of any one over any other) to such Secured Parties in proportion to the amounts of such Collateral Agent 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 Agent Trustee Fees other than such administrative expenses described in clause First aboveexpenses, 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 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 PartiesInstruments 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 amount then obligation to cash collateralize undrawn letters of credit or letters of guarantee) with 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 owing 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 remaining 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, 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 (in each case to the extent not then due and payable) in full; Fourth (this clause being applicable only , as of such Distribution Date, and, if an Event of Default such moneys shall have occurred and be continuing): insufficient 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 pay 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 then ratably to such holders in proportion to the unpaid amounts thereof on such Distribution Date; and Eighth: any Incremental Revolving Commitments shall have been terminated surplus then remaining shall be paid over to the Borrower Grantors or their successors or assigns or to whomsoever may be lawfully entitled to receive the samesame or as a court of competent jurisdiction may direct.
(c) The term “unpaid” as used in clauses Third Third, Fourth, Sixth and Fourth Seventh of Section 7.4(b3.4(b) refers:
(i) in the absence of a bankruptcy proceeding with respect to the relevant Grantor(s), refers to all amounts of the Secured Obligations outstanding as of a Distribution Date, whether or not such amounts are fixed or contingent, and
(ii) during , in the pendency case of a bankruptcy proceeding an Insolvency Proceeding, with respect to the relevant Grantor(s)any Grantor, to all whether or not such 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 a basis for distribution (including estimated amounts, if any, are allowed in respect of contingent claims)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 Agent Trustee shall make all payments and distributions under this Section 7.4 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 Additional Debt Representative, for re-distribution in accordance with the provisions of the applicable Additional Debt Documents; and (iii) on account of any other Secured Obligation, to the relevant Secured Party based on the information supplied to the Collateral Trustee by the Borrower pursuant to Section 7.3.
Appears in 1 contract
Samples: Credit Agreement (General Motors Co)
