Order of Application. Subject to Clause 15.2 (Prospective liabilities), all amounts from time to time received or recovered by the Security Agent in connection with the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid to the Security Agent for application pursuant to this Clause 15 (for the purposes of this Clause 15, the “Recoveries”) shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priority: (a) first, in payment of the following amounts in the following order: (i) pari passu and pro rata any sums owing to the Security Agent, any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts payable to a Senior Secured Notes Trustee, as the case may be; and then (ii) pari passu and pro rata to each Creditor Representative (to the extent not included in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations); (b) second, pari passu and pro rata, in or towards payment of all costs and expenses incurred by the Super Senior Creditors in connection with the realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent; (c) third, in or towards payment to: (i) the RCF Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility Agreement); and (ii) the Super Senior Hedge Counterparties, for application towards the discharge of: (A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) in accordance with the terms of the Credit Facility Documents; and (B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) above; (d) fourth, pari passu and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent; (e) fifth, in or towards payment to: (i) the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders; (ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors; (iii) the Senior Secured Hedge Counterparties, for application towards the discharge of: (A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture); (B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents); and (C) the Senior Secured Hedging Liabilities, on a Pari Passu basis as between paragraphs (A), (B) and (C) above; (f) sixth, after the Final Discharge Date, in payment of the surplus (if any) to the relevant Debtor or other person entitled to it.
Appears in 2 contracts
Samples: Intercreditor Agreement (Nord Anglia Education, Inc.), Intercreditor Agreement (Nord Anglia Education, Inc.)
Order of Application. Subject 22.22.1 The Security Agent agrees to Clause 15.2 (Prospective liabilities), all amounts from time to time received or recovered by apply the Trust Property and each other beneficiary of the Security Agent Documents agrees to apply all moneys received by it in connection the exercise of its rights under the Security Documents in accordance with the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid to the Security Agent for application pursuant to this Clause 15 (for the purposes of this Clause 15, the “Recoveries”) shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priorityrespective claims:
(a) first, in payment of as to a sum equivalent to the following amounts in the following order: (i) pari passu and pro rata any sums owing payable to the Security Agent, Agent under the Finance Documents (excluding any Receiver or any Delegate amounts received by the Security Agent pursuant to clause 22.12 (Reimbursement and any Senior Secured Notes Trustee Amounts payable to a Senior Secured Notes Trustee, indemnity by Lenders) as the case may be; and then (ii) pari passu and pro rata to each Creditor Representative (extended to the extent not included in Security Agent pursuant to clause 22.20 (i) above and excluding any Hedge Counterparty as its own Creditor Representative) Application of certain clauses to Security Agent)), for the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations)Agent absolutely;
(b) secondsecondly, pari passu as to a sum equivalent to the aggregate amount then due and pro rataowing to the other Finance Parties under the Finance Documents, in or towards payment of all costs for those Finance Parties absolutely, and expenses incurred by pro-rata to the Super Senior Creditors in connection with amounts owing to them under the realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security AgentFinance Documents;
(c) thirdthirdly, in or towards payment to:
(i) until such time as the RCF Security Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under is satisfied that Credit Facility Agreement); and
(ii) the Super Senior Hedge Counterparties, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities all obligations owed to the Creditor Representatives Finance Parties have been irrevocably and unconditionally discharged in respect full, held by the Security Agent on a suspense account for payment of each Credit Facility Agreement, any further amounts owing to the Credit Facility Lender Liabilities Finance Parties under the Finance Documents and the related Arranger Liabilities) further application in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu this clause 22.22.1 as and pro rata basis as between paragraphs (A) and (B) abovewhen any such amounts later fall due;
(d) fourthfourthly, pari passu and pro rata to such other persons (if any) as are legally entitled thereto in or towards payment priority to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;Parties; and
(e) fifthfifthly, in or towards payment to:
(i) as to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents); and
(C) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixth, after the Final Discharge Date, in payment of the surplus balance (if any) to ), for the Security Parties by or from whom or from whose assets the relevant Debtor amounts were paid, received or recovered or other person entitled to itthem.
22.22.2 The Security Agent and each other beneficiary of the Security Documents shall make each application as soon as is practicable after the relevant moneys are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Security Agent (acting on the instructions of the Facility Agent), any other beneficiary of the Security Documents or any receiver or administrator may credit any moneys received by it to a suspense account for so long and in such manner as the Security Agent, such other beneficiary of the Security Documents or such receiver or administrator may from time to time determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against any Borrower or any other person liable.
22.22.3 The Security Agent and/or any other beneficiary of the Security Documents shall obtain a good discharge in respect of the amounts expressed to be due to the other Finance Parties as referred to in this clause 22.22 by paying such amounts to the Facility Agent for distribution in accordance with clause 18.1 (Application of moneys).
Appears in 2 contracts
Samples: On Delivery Facility Agreement (Paragon Shipping Inc.), On Delivery Buyer Credit Facility Agreement (DryShips Inc.)
Order of Application. Subject (a) The Security Agent agrees to Clause 15.2 apply the Trust Property and each other beneficiary of the Security Documents agrees to apply all moneys received by it in the exercise of its rights under the Security Documents in accordance with the following respective claims:
(Prospective liabilities)i) first, all as to a sum equivalent to the amounts from time payable to time the Security Agent under the Finance Documents (excluding any amounts received or recovered by the Security Agent in connection with pursuant to clause 33.11 (Lxxxxxx’ indemnity to the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid Agent) as extended to the Security Agent pursuant to clause 33.22 (Application of certain clauses to Security Agent)), for the Security Agent absolutely;
(ii) secondly, as to a sum equivalent to the aggregate amount then due and owing to the other Finance Parties (other than the Hedging Providers) under the Finance Documents (other than the Hedging Contracts or any Hedging Master Agreement), for those Finance Parties absolutely for application pursuant between them in accordance with clause 36.5 (Partial payments);
(iii) thirdly, until such time as the Security Agent is satisfied that all obligations owed to this Clause 15 the Finance Parties (for other than the purposes of this Clause 15Hedging Providers) have been irrevocably and unconditionally discharged in full, the “Recoveries”) shall be held by the Security Agent on trust a suspense account for payment of any further amounts owing to apply the Finance Parties (other than the Hedging Providers) under the Finance Documents (other than the Hedging Contracts or any Hedging Master Agreement) and further application in accordance with this clause 33.24(a) as and when any such amounts later fall due;
(iv) fourthly, as to a sum equivalent to the aggregate amount then due and owing to the Hedging Providers under the Hedging Contracts and any Hedging Master Agreements, for those Hedging Providers absolutely for application between them at any in accordance with clause 36.5 (Partial payments);
(v) fifthly, until such time as the Security Agent (in its discretion) sees fit, is satisfied that all obligations owed to the extent permitted Hedging Providers have been irrevocably and unconditionally discharged in full, held by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priority:
(a) first, in Security Agent on a suspense account for payment of the following any further amounts in the following order: (i) pari passu and pro rata any sums owing to the Security AgentHedging Providers under the Hedging Contracts, any Receiver or any Delegate Hedging Master Agreement and any Senior Secured Notes Trustee Amounts payable to a Senior Secured Notes Trustee, other Finance Documents and further application in accordance with this clause 33.24(a) as the case may be; and then (ii) pari passu and pro rata to each Creditor Representative (to the extent not included in (i) above and excluding when any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations)amounts later fall due;
(bvi) secondsixthly, pari passu and pro rata, to such other persons (if any) as are legally entitled thereto in or towards payment of all costs and expenses incurred by priority to the Super Senior Creditors in connection with the realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(c) third, in or towards payment to:
(i) the RCF Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility Agreement)Obligors; and
(iivii) the Super Senior Hedge Counterpartiesseventhly, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed as to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) above;
(d) fourth, pari passu and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(e) fifth, in or towards payment to:
(i) the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents); and
(C) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixth, after the Final Discharge Date, in payment of the surplus balance (if any) to ), for the Obligors by or from whom or from whose assets the relevant Debtor amounts were paid, received or recovered or other person entitled to itthem.
(b) The Security Agent and each other beneficiary of the Security Documents shall make each application as soon as is practicable after the relevant moneys are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Security Agent (acting on the instructions of the Agent) any other beneficiary of the Security Documents or any receiver or administrator may credit any moneys received by it to a suspense account for so long and in such manner as the Security Agent), any other beneficiary of the Security Documents or such receiver or administrator may from time to time determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against the Borrower or any other person liable.
(c) The Security Agent and/or any other beneficiary of the Security Documents shall obtain a good discharge in respect of the amounts expressed to be due to the other Finance Parties as referred to in this clause 33.24 by paying such amounts to the Agent for distribution in accordance with clause 36 (Payment mechanics).
Appears in 2 contracts
Samples: Facility Agreement (Cool Co Ltd.), Facility Agreement (Cool Co Ltd.)
Order of Application. Subject to Clause 15.2 (Prospective liabilities), all amounts from time to time received or recovered by the Security Agent a) Except as otherwise provided in connection with the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid to the Security Agent for application pursuant to this Clause 15 (for the purposes of this Clause 15, the “Recoveries”) shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (Agreement and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priority:
(a) first, in payment terms of the following amounts in the following order: (i) pari passu and pro rata any sums owing to Intercreditor Agreement, the Security Agent, any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts payable Agent agrees to a Senior Secured Notes Trustee, as apply the case may be; and then (ii) pari passu and pro rata to each Creditor Representative (to the extent not included in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations);
(b) second, pari passu and pro rata, in or towards payment of all costs and expenses incurred by the Super Senior Creditors in connection with the realisation or enforcement of the Transaction Security taken Trust Property in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(c) third, in or towards payment tofollowing respective claims:
(i) first, as to a sum equivalent to the RCF amounts payable to K-sure under clause 16.4, the Facility Agent on its own behalf and on behalf of and/or the RCF Finance Parties on its own behalf and on behalf of K-sure Agent and/or the Arrangers Security Agent under the RCF Finance Documents (excluding any amounts received by the Facility Agent and/or the Security Agent pursuant to clause 37.10 (Lenders’ indemnity to the Facility Agent) as extended to the Security Agent pursuant to clause 37.21 (Application of certain clauses to Security Agent) or following by the RCF Discharge DateK-sure Agent pursuant to clause 37.22(f)), each Creditor Representative(s) in respect of a Credit for the Facility Agreement on its own behalf and on behalf of Agent and/or the Arrangers and Credit Facility Lenders under that Credit Facility Agreement); andK-sure Agent and/or the Security Agent absolutely, and/or K-sure;
(ii) secondly, as to a sum equivalent to any other unpaid fees, costs (including, without limitation, Break Costs) and expenses of the Super Senior Hedge CounterpartiesFacility Agent, for application the Security Agent, the Account Bank, the Mandated Lead Arrangers and any Receiver under the Finance Documents;
(iii) thirdly, in or towards payment, on a pari passu basis, to (i) the discharge ofLenders pro rata of any accrued interest, fee or commission due but unpaid under the Finance Documents and (ii) the Hedging Banks pro rata of any sums (other than swap termination / close-out payments sums under the Hedging Contracts) owing to them under any of the Finance Documents;
(iv) fourthly, in or towards payment, on a pari passu basis, to:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities Lenders pro rata of any principal which is due (or following overdue) but unpaid under the RCF Discharge Date, the Creditor Representative Liabilities owed to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) in accordance with the terms of the Credit Facility Finance Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu and Banks pro rata basis as between paragraphs (A) and (B) aboveof any termination sums / close-out payments owing to them under the Hedging Contracts;
(dv) fourthfifthly, pari passu and pro rata in or towards payment only when an Event of Default is continuing, until such time as the Security Agent is satisfied that all obligations owed to the Senior Secured Notes Trustee Finance Parties have been irrevocably and unconditionally discharged in full or no Event of Default is continuing, held by the Security Agent on behalf a suspense account for payment of the Senior Secured Noteholders and any further amounts owing to the relevant Creditor Representative on behalf Finance Parties under the Finance Documents and further application in accordance with this clause 37.23(a) as and when any such amounts later fall due, to the extent there remains a risk of an insolvency (as described in clause 31.8 (Insolvency)) and/or insolvency proceedings (as described in clause 31.9 (Insolvency proceedings)) affecting the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken Borrower;
(vi) sixthly, to such other persons (if any) as are entitled thereto in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security AgentIntercreditor Agreement;
(evii) fifthseventhly, to such other persons (if any) as are legally entitled thereto in or towards payment to:
(i) priority to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents)Obligors; and
(Cviii) eighthly, as to the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixth, after the Final Discharge Date, in payment of the surplus balance (if any) to ), for the Obligors by or from whom or from whose assets the relevant Debtor amounts were paid, received or recovered or other person entitled to itthem.
(b) The Security Agent shall make each application as soon as is practicable after the relevant moneys are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Security Agent (acting on the instructions of the Facility Agent) or any receiver or administrator may, when an Event of Default is continuing, credit any moneys received by it to a suspense account for so long and in such manner as the Security Agent or such receiver or administrator may from time to time determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against the Borrower or any other person liable provided that: (1) when such amounts taken together with other amounts that are held on similar suspense or nominal accounts in accordance with the Finance Documents are sufficient to discharge the Borrower’s obligations under the Finance Documents they must be so applied; and (ii) such amount shall be treated as having been paid when due for all purposes under the Finance Documents, including the determination of interest accruing on amounts, whether at the default rate or otherwise.
(c) The Security Agent shall obtain a good discharge in respect of the amounts expressed to be due to the other Finance Parties as referred to in this clause 37.23 by paying such amounts to the Facility Agent for distribution in accordance with clause 40 (Payment mechanics).
Appears in 2 contracts
Samples: Facility Agreement (Hoegh LNG Partners LP), Facility Agreement (Hoegh LNG Partners LP)
Order of Application. Subject (a) The Security Agent agrees to Clause 15.2 apply the Trust Property and each other beneficiary of the Security Documents agrees to apply all moneys received by it in the exercise of its rights under the Security Documents in accordance with the following respective claims:
(Prospective liabilities)i) first, all as to a sum equivalent to the amounts from time payable to time the Security Agent under the Finance Documents (excluding any amounts received or recovered by the Security Agent in connection with pursuant to clause 34.10 (Xxxxxxx’ indemnity to the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid Agent) as extended to the Security Agent pursuant to clause 34.17 (Application of certain clauses to Security Agent)), for the Security Agent absolutely;
(ii) secondly, as to a sum equivalent to the aggregate amount then due and owing to the other Finance Parties under the Finance Documents, for those Finance Parties absolutely for application pursuant between them in accordance with clause 37.5 (Partial payments), and pro-rata to this Clause 15 the amounts owing to them under the Finance Documents;
(for iii) thirdly, until such time as the purposes of this Clause 15Security Agent is satisfied that all obligations owed to the Finance Parties have been irrevocably and unconditionally discharged in full, the “Recoveries”) shall be any sums held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priority:
(a) first, in a suspense account for payment of the following any further amounts in the following order: (i) pari passu and pro rata any sums owing to the Security Agent, Finance Parties under the Finance Documents and further application in accordance with this clause 34.19(a) as and when any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts payable to a Senior Secured Notes Trustee, as the case may be; and then (ii) pari passu and pro rata to each Creditor Representative (to the extent not included in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations)amounts later fall due;
(biv) secondfourthly, pari passu and pro rata, to such other persons (if any) as are legally entitled thereto in or towards payment of all costs and expenses incurred by priority to the Super Senior Creditors in connection with the realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(c) third, in or towards payment to:
(i) the RCF Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility Agreement)Obligors; and
(iiv) the Super Senior Hedge Counterpartiesfifthly, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed as to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) above;
(d) fourth, pari passu and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(e) fifth, in or towards payment to:
(i) the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents); and
(C) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixth, after the Final Discharge Date, in payment of the surplus balance (if any) to ), for the Obligors by or from whom or from whose assets the relevant Debtor amounts were paid, received or recovered or other person entitled to itthem.
(b) The Security Agent and each other beneficiary of the Security Documents shall make each application as soon as is practicable after the relevant moneys are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Security Agent (acting on the instructions of the Agent), any other beneficiary of the Security Documents or any receiver or administrator may credit any moneys received by it to a suspense account for so long and in such manner as the Security Agent, such other beneficiary of the Security Documents or such receiver or administrator may from time to time determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against the Borrowers or any other person liable.
(c) The Security Agent and/or any other beneficiary of the Security Documents shall obtain a good discharge in respect of the amounts expressed to be due to the other Finance Parties as referred to in this clause 34.19 by distributing the same in accordance with clause 37 (Payment mechanics).
Appears in 1 contract
Order of Application. Subject to Clause 15.2 (Prospective liabilities)the rights of any creditor with prior security or preferential claims, all amounts from time to time received or recovered by the proceeds of enforcement of the Security Agent in connection with shall be paid to the realisation or Enforcement of Security Agent. Those proceeds and all or any part of the Transaction Security or otherwise other amounts paid to the Security Agent for application pursuant to under this Clause 15 (for the purposes of this Clause 15, the “Recoveries”) Agreement shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), applied in the following order of priorityorder:
(a) first, in payment First as to a sum equivalent to the amounts payable to the Security Agent under paragraph 16 of Schedule S and clauses 10.1 and 10.4 of the following Group Debenture as defined in the Senior Subordinated Facility Agreement and any equivalent or similar provisions in any other New Security Document from time to time (excluding any amounts received by the Security Agent pursuant to paragraph 10 of Schedule 5), for the Security Agent absolutely;
(b) Second as to a sum equivalent to the amounts standing to the credit of any Cash Collateral Accounts in respect of Ancillary Facilities Liabilities or otherwise standing to the credit of any accounts which have been netted against Ancillary Facilities Liabilities under the terms of the Ancillary Facilities Letters which operate on a net limit basis in each case from time to time and to the extent that for any reason the relevant Ancillary Facilities Banks are unable to apply such amounts in satisfaction of Ancillary Facilities Liabilities, for such relevant Ancillary Facilities Banks absolutely, pro-rata in respect of each such relevant Ancillary Facilities Bank;
(c) Third as to a sum equivalent to the following order: Senior Debt (i) pari passu and pro rata any sums other than that owing to the Security Agent, any Receiver or any Delegate Agent and any Senior Secured Notes Trustee Amounts payable to a Senior Secured Notes Trustee, as the case may be; and then (ii) pari passu and pro rata to each Creditor Representative (to the extent not included in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that they are satisfied pursuant to Subclause 9.1(b) and/or Clause 9.2 (Ancillary Facilities Liabilities)) the Ancillary Facilities Banks) (for the avoidance of doubt excluding the amount of any Senior Debt referred to in the proviso to such Security has been given term in favour of such obligationsSubclause 1.1 (Definitions);
), for the Senior Finance Parties absolutely, and pro-rata (b) second, pari passu and pro rata, in or towards payment of all costs and expenses incurred by the Super Senior Creditors in connection with the realisation or enforcement Security Agent obtaining a good discharge in respect of the Transaction Security taken in accordance with amounts expressed to be due to the Senior Finance Parties (other than the Hedge Counterparties) under the terms of the Transaction Security Documents and this Senior Facilities Agreement or any action taken at the request of the Security Agent;
(c) third, in or towards payment to:
(i) the RCF Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility Agreement); and
(ii) the Super Senior Hedge Counterparties, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed by paying such amounts to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) Senior Agent for distribution in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) above;
(d) fourth, pari passu and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf clause 8.9 of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(e) fifth, in or towards payment to:
(i) the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes IndentureFacilities Agreement);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents); and
(C) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixth, after the Final Discharge Date, in payment of the surplus (if any) to the relevant Debtor or other person entitled to it.
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Order of Application. Subject to Clause 15.2 (Prospective liabilities)Following an Event of Default, all amounts from time to time moneys and proceeds of any enforcement and any sums which are received or recovered by the Security Agent in connection with the realisation any Finance Party under or Enforcement by virtue of all or any part of the Transaction Security or otherwise paid to the Security Agent for application pursuant to this Clause 15 (for the purposes of this Clause 15, the “Recoveries”) Finance Document shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priorityapplied:
(a) FIRST: in or towards satisfaction of any amounts then due and payable under any Finance Document in the following order (and in relation to any payments under paragraphs (iii), (iv) or (v) below, pro rata between the GIEK Facility Lender and the Commercial Facility Lenders and the Hedging Banks by reference to the amounts owing to them under the GIEK Facility Loan, the Commercial Facility Loan and the Hedging Agreements, respectively):
(i) first, in payment or towards satisfaction of all amounts (including, without limitation, any costs and expenses) then due and payable by the following amounts in the following order: (i) pari passu and pro rata any sums owing Obligors to the Administrative Agent and the Security Agent, Agent under any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts payable to a Senior Secured Notes Trustee, as the case may be; and then Finance Document;
(ii) pari passu secondly, in or towards satisfaction of all amounts (including, without limitation, any costs and expenses and any sums payable by the Borrowers under Section 21) then due and payable by the Obligors under the Finance Documents other than those amounts referred to at paragraphs (i), (iii), (iv) and (v);
(iii) thirdly, in or towards satisfaction of any and all amounts of default interest payable by the Borrowers under this Agreement other than those amounts referred to at paragraph (i);
(iv) fourthly, in or towards satisfaction pro rata of any and all amounts of interest payable by the Borrowers under this Agreement and sums payable by the Borrowers under Sections 23 and 25 other than those amounts referred to each Creditor Representative (to the extent not included in at paragraph (i); and
(v) above and excluding any Hedge Counterparty as its own Creditor Representative) fifthly, in or towards repayment of the unpaid fees, costs, expenses and liabilities (outstanding principal of the Loan and all interest thereon as provided in amounts due and payable by the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative Borrowers under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations)Hedging Agreements;
(b) secondSECONDLY: in retention of an amount equal to any amount not then due and payable under any Finance Document but which the Administrative Agent, pari passu by notice to the Obligors and pro ratathe other Finance Parties, states in its reasonable opinion will or may become due and payable in the future and, upon those amounts becoming due and payable, in or towards payment satisfaction of all costs and expenses incurred by the Super Senior Creditors in connection with the realisation or enforcement of the Transaction Security taken them in accordance with the terms provisions of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(c) third, in or towards payment to:
(i) the RCF Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility AgreementSection 18.1(a); and
(ii) the Super Senior Hedge Counterparties, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) above;
(d) fourth, pari passu and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(e) fifth, in or towards payment to:
(i) the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents); and
(C) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixth, after the Final Discharge Date, in payment of the surplus (if any) to the relevant Debtor or other person entitled to it.
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Samples: Senior Secured Credit Facility Agreement (Pacific Drilling S.A.)
Order of Application. Subject 35.18.1 The Agent agrees to Clause 15.2 (Prospective liabilities), all amounts from time to time received or recovered by apply the Trust Property and each other beneficiary of the Security Agent Documents agrees to apply all moneys received by it in connection the exercise of its rights under the Security Documents in accordance with the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid to the Security Agent for application pursuant to this Clause 15 (for the purposes of this Clause 15, the “Recoveries”) shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priorityrespective claims:
(a) first, in payment of the following amounts in the following order: (i) pari passu and pro rata any sums owing as to a sum equivalent to the Security Agent, any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts amounts payable to a Senior Secured Notes Trustee, as the case may be; and then Agent under the Finance Documents (ii) pari passu and pro rata excluding any amounts received by the Agent pursuant to each Creditor Representative clause 35.10 (Lenders’ indemnity to the extent not included in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of Agent), for the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations)Agent absolutely;
(b) secondsecondly, pari passu as to a sum equivalent to the aggregate amount then due and pro rataowing to the other Finance Parties (except the Hedging Providers) under the Finance Documents (except any Hedging Contracts), in or towards payment of all costs for those Finance Parties (except the Hedging Providers) absolutely, and expenses incurred by pro-rata to the Super Senior Creditors in connection with amounts owing to them under the realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Finance Documents and this Agreement or (except any action taken at the request of the Security AgentHedging Contracts);
(c) thirdthirdly, in or towards payment to:
(i) until such time as the RCF Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under is satisfied that Credit Facility Agreement); and
(ii) the Super Senior Hedge Counterparties, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities all obligations owed to the Creditor Representatives Finance Parties (except the Hedging Providers) have been irrevocably and unconditionally discharged in respect full, held by the Agent on a suspense account for payment of each Credit Facility Agreement, any further amounts owing to the Credit Facility Lender Liabilities Finance Parties (except the Hedging Providers) under the Finance Documents (except any Hedging Contracts) and the related Arranger Liabilities) further application in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu this clause 35.18.1 as and pro rata basis as between paragraphs (A) and (B) abovewhen any such amounts later fall due;
(d) fourthfourthly, pari passu as to a sum equivalent to the aggregate net amount then due to the Hedging Providers but unpaid under any Hedging Contracts, for the Hedging Providers absolutely, and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and net amounts owing to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agentthem under those Hedging Contracts;
(e) fifthfifthly, to such other persons (if any) as are legally entitled thereto in or towards payment to:
(i) priority to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents)Obligors; and
(C) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixthsixthly, after as to the Final Discharge Date, in payment of the surplus balance (if any) to ), for the Obligors by or from whom or from whose assets the relevant Debtor amounts were paid, received or recovered or other person entitled to itthem.
35.18.2 The Agent and each other beneficiary of the Security Documents shall make each application as soon as is practicable after the relevant moneys are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Agent, any other beneficiary of the Security Documents or any receiver or administrator may credit any moneys received by it to a suspense account for so long and in such manner as the Agent, such other beneficiary of the Security Documents or such receiver or administrator may from time to time determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against the Borrowers or any other person liable.
35.18.3 The Agent and/or any other beneficiary of the Security Documents shall obtain a good discharge in respect of the amounts expressed to be due to the other Finance Parties as referred to in this clause 35.18 by distributing the same in accordance with clause 38 (Payment mechanics).
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Order of Application. Subject (a) The Security Agent agrees to Clause 15.2 apply the Trust Property and each other beneficiary of the Security Documents agrees to apply all moneys received by it in the exercise of its rights under the Security Documents in accordance with the following respective claims:
(Prospective liabilities)i) first, all as to a sum equivalent to the amounts from time payable to time the Security Agent under the Finance Documents (excluding any amounts received or recovered by the Security Agent in connection with pursuant to clause 35.10 (Lenders' indemnity to the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid Agent) as UK-#395507908-v8 extended to the Security Agent pursuant to clause 35.17 (Application of certain clauses to Security Agent), for the Security Agent absolutely;
(ii) secondly, as to a sum equivalent to the aggregate amount then due and owing to the other Finance Parties under the Finance Documents, for those Finance Parties absolutely for application pursuant between them in accordance with clause 38.5 (Partial payments), and pro-rata to this Clause 15 the amounts owing to them under the Finance Documents;
(for iii) thirdly, until such time as the purposes of this Clause 15Security Agent is satisfied that all obligations owed to the Finance Parties have been irrevocably and unconditionally discharged in full, the “Recoveries”) shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priority:
(a) first, in a suspense account for payment of the following any further amounts in the following order: (i) pari passu and pro rata any sums owing to the Security Agent, Finance Parties under the Finance Documents and further application in accordance with this clause 35.19(a) as and when any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts payable to a Senior Secured Notes Trustee, as the case may be; and then (ii) pari passu and pro rata to each Creditor Representative (to the extent not included in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations)amounts later fall due;
(biv) secondfourthly, pari passu and pro rata, to such other persons (if any) as are legally entitled thereto in or towards payment of all costs and expenses incurred by priority to the Super Senior Creditors in connection with the realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(c) third, in or towards payment to:
(i) the RCF Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility Agreement)Obligors; and
(iiv) the Super Senior Hedge Counterpartiesfifthly, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed as to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) above;
(d) fourth, pari passu and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(e) fifth, in or towards payment to:
(i) the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents); and
(C) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixth, after the Final Discharge Date, in payment of the surplus balance (if any) to ), for the Obligors by or from whom or from whose assets the relevant Debtor amounts were paid, received or recovered or other person entitled to itthem.
(b) The Security Agent and each other beneficiary of the Security Documents shall make each application as soon as is practicable after the relevant moneys are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Security Agent (acting on the instructions of the Agent), any other beneficiary of the Security Documents or any receiver or administrator may credit any moneys received by it to a suspense account for so long and in such manner as the Security Agent, such other beneficiary of the Security Documents or such receiver or administrator may from time to time determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against the Borrowers or any other person liable.
(c) The Security Agent and/or any other beneficiary of the Security Documents shall obtain a good discharge in respect of the amounts expressed to be due to the other Finance Parties as referred to in this clause 35.19(a) by distributing the same in accordance with clause 38 (Payment mechanics).
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Order of Application. Subject 34.18.1 The Agent agrees to Clause 15.2 (Prospective liabilities), all amounts from time to time received or recovered by apply the Trust Property and each other beneficiary of the Security Agent Documents agrees to apply all moneys received by it in connection the exercise of its rights under the Security Documents in accordance with the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid to the Security Agent for application pursuant to this Clause 15 (for the purposes of this Clause 15, the “Recoveries”) shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priorityrespective claims:
(a) first, in payment of the following amounts in the following order: (i) pari passu and pro rata any sums owing as to a sum equivalent to the Security Agent, any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts amounts payable to a Senior Secured Notes Trustee, as the case may be; and then Agent under the Finance Documents (ii) pari passu and pro rata excluding any amounts received by the Agent pursuant to each Creditor Representative clause 34.10 (Lenders’ indemnity to the extent not included in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of Agent), for the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations)Agent absolutely;
(b) secondsecondly, pari passu as to a sum equivalent to the aggregate amount then due and pro rataowing to the other Finance Parties (except the Hedging Providers) under the Finance Documents (except any Hedging Contracts), in or towards payment of all costs for those Finance Parties (except the Hedging Providers) absolutely, and expenses incurred by pro-rata to the Super Senior Creditors in connection with amounts owing to them under the realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Finance Documents and this Agreement or (except any action taken at the request of the Security AgentHedging Contracts);
(c) thirdthirdly, in or towards payment to:
(i) until such time as the RCF Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under is satisfied that Credit Facility Agreement); and
(ii) the Super Senior Hedge Counterparties, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities all obligations owed to the Creditor Representatives Finance Parties (except the Hedging Providers) have been irrevocably and unconditionally discharged in respect full, held by the Agent on a suspense account for payment of each Credit Facility Agreement, any further amounts owing to the Credit Facility Lender Liabilities Finance Parties (except the Hedging Providers) under the Finance Documents (except any Hedging Contracts) and the related Arranger Liabilities) further application in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu this clause 34.18.1 as and pro rata basis as between paragraphs (A) and (B) abovewhen any such amounts later fall due;
(d) fourthfourthly, pari passu as to a sum equivalent to the aggregate net amount then due to the Hedging Providers but unpaid under any Hedging Contracts, for the Hedging Providers absolutely, and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and net amounts owing to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agentthem under those Hedging Contracts;
(e) fifthfifthly, to such other persons (if any) as are legally entitled thereto in or towards payment to:
(i) priority to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents)Obligors; and
(C) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixthsixthly, after as to the Final Discharge Date, in payment of the surplus balance (if any) to ), for the Obligors by or from whom or from whose assets the relevant Debtor amounts were paid, received or recovered or other person entitled to itthem.
34.18.2 The Agent and each other beneficiary of the Security Documents shall make each application as soon as is practicable after the relevant moneys are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Agent, any other beneficiary of the Security Documents or any receiver or administrator may credit any moneys received by it to a suspense account for so long and in such manner as the Agent, such other beneficiary of the Security Documents or such receiver or administrator may from time to time determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against the Borrower or any other person liable.
34.18.3 The Agent and/or any other beneficiary of the Security Documents shall obtain a good discharge in respect of the amounts expressed to be due to the other Finance Parties as referred to in this clause 34.18 by distributing the same in accordance with clause 37 (Payment mechanics).
Appears in 1 contract
Order of Application. Subject 35.21.1 The Security Agent agrees to Clause 15.2 apply the Trust Property and each other beneficiary of the Security Documents agrees, subject to clause 30.10 (Prospective liabilitiesRanking of Hedging Contracts), to apply all amounts from time to time moneys received or recovered by it in the exercise of its rights under the Security Agent Documents in connection accordance with the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid to the Security Agent for application pursuant to this Clause 15 (for the purposes of this Clause 15, the “Recoveries”) shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priorityrespective claims:
(a) first, as to a sum equivalent to the amounts payable to the Security Agent under the Finance Documents (excluding any amounts received by the Security Agent pursuant to clause 35.10 (Lenders’ indemnity to the Agent) as extended to the Security Agent pursuant to clause 35.19 (Application of certain clauses to Security Agent), for the Security Agent absolutely;
(b) secondly, as to a sum equivalent to the aggregate amount then due and owing to the other Finance Parties under the Finance Documents, for those Finance Parties absolutely for application between them in accordance with clause 38.5 (Partial payments), and pro-rata to the amounts owing to them under the Finance Documents;
(c) thirdly, until such time as the Security Agent is satisfied that all obligations owed to the Finance Parties have been irrevocably and unconditionally discharged in full, held by the Security Agent on a suspense account for payment of the following any further amounts in the following order: (i) pari passu and pro rata any sums owing to the Finance Parties under the Finance Documents and further application in accordance with this clause 35.21.1 as and when any such amounts later fall due;
(d) fourthly, to such other persons (if any) as are legally entitled thereto in priority to the Obligors; and
(e) fifthly, as to the balance (if any), for the Obligors by or from whom or from whose assets the relevant amounts were paid, received or recovered or other person entitled to them.
35.21.2 The Security Agent and each other beneficiary of the Security Documents shall make each application as soon as is practicable after the relevant moneys are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Security Agent (acting on the instructions of the Agent), any other beneficiary of the Security Documents or any receiver or administrator may credit any moneys received by it to a suspense account for so long and in such manner as the Security Agent, any Receiver other beneficiary of the Security Documents or such receiver or administrator may from time to time determine with a view to preserving the rights of the Finance Parties or any Delegate and of them to prove for the whole of their respective claims against the Borrowers or any Senior Secured Notes Trustee Amounts payable other person liable.
35.21.3 The Security Agent and/or any other beneficiary of the Security Documents shall obtain a good discharge in respect of the amounts expressed to a Senior Secured Notes Trustee, as the case may be; and then (ii) pari passu and pro rata to each Creditor Representative (be due to the extent not included other Finance Parties as referred to in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each this clause 35.21 by paying such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (amounts to the extent that such Security has been given in favour of such obligations);
(b) second, pari passu and pro rata, in or towards payment of all costs and expenses incurred by the Super Senior Creditors in connection with the realisation or enforcement of the Transaction Security taken Agent for distribution in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
clause 38 (c) third, in or towards payment to:
(i) the RCF Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility AgreementPayment mechanics); and
(ii) the Super Senior Hedge Counterparties, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) above;
(d) fourth, pari passu and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(e) fifth, in or towards payment to:
(i) the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents); and
(C) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixth, after the Final Discharge Date, in payment of the surplus (if any) to the relevant Debtor or other person entitled to it.
Appears in 1 contract
Order of Application. Subject 34.24.1 The Security Agent agrees to Clause 15.2 (Prospective liabilities), all amounts from time to time received or recovered by apply the Trust Property and each other beneficiary of the Security Agent Documents agrees to apply all moneys received by it in connection the exercise of its rights under the Security Documents in accordance with the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid to the Security Agent for application pursuant to this Clause 15 (for the purposes of this Clause 15, the “Recoveries”) shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priorityrespective claims:
(a) first, in payment of as to a sum equivalent to the following amounts in the following order: (i) pari passu and pro rata any sums owing payable to the Security Agent, Agent under the Finance Documents (excluding any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts payable amounts received by the Security Agent pursuant to a Senior Secured Notes Trustee, as the case may be; and then clause 34.11 (ii) pari passu and pro rata to each Creditor Representative (Lenders' indemnity to the extent not included in (iAgent) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (extended to the extent that such Security has been given in favour Agent pursuant to clause 34.22 (Application of such obligationscertain clauses to Security Agent)), for the Security Agent absolutely;
(b) secondsecondly, pari passu and pro rata, in or towards payment of all costs and expenses incurred as to a sum equivalent to the amounts payable to the Agent under the Finance Documents (excluding any amounts received by the Super Senior Creditors in connection with Agent pursuant to clause 34.11 (Lenders' indemnity to the realisation or enforcement of Agent)), for the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security AgentAgent absolutely;
(c) thirdthirdly, in or towards payment to:
(i) as to a sum equivalent to the RCF Agent on its own behalf aggregate amount then due and on behalf of owing to the RCF other Finance Parties on its own behalf and on behalf of (other than the Arrangers Hedging Providers) under the RCF Facility Finance Documents (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility Agreementbut excluding any Hedging Contracts); and
(ii) the Super Senior Hedge Counterparties, for those Finance Parties absolutely for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) between them in accordance with the terms of the Credit Facility Documents; and
clause 37.5 (B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) abovePartial payments);
(d) fourthfourthly, pari passu and pro rata in or towards payment until such time as the Security Agent is satisfied that all obligations owed to the Senior Secured Notes Trustee Finance Parties (other than the Hedging Providers) have been irrevocably and unconditionally discharged in full, held by the Security Agent on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors a suspense account for application towards any unpaid costs and expenses incurred by or on behalf payment of any Senior Secured Noteholders further amounts owing to those Finance Parties (other than the Hedging Providers) under the Finance Documents (but excluding any Hedging Contracts), and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken further application in accordance with the terms of the Transaction Security Documents this clause 3424.1 as and this Agreement or when any action taken at the request of the Security Agentsuch amounts later fall due;
(e) fifthfifthly, in or towards payment to:
(i) as to a sum equivalent to the Senior Secured Notes Trustee on behalf of aggregate net amounts then due to the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge CounterpartiesHedging Providers but unpaid under any Hedging Contracts, for application towards the discharge of:
(A) Hedging Providers absolutely, and pro rata to the Senior Secured Notes Liabilities (in accordance with net amounts owing to them under the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents); and
(C) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) aboveContracts;
(f) sixthsixthly, after the Final Discharge Date, in payment of the surplus to such other persons (if any) as are legally entitled thereto in priority to the Obligors; and
(g) seventhly, as to the balance (if any), for the Obligors by or from whom or from whose assets the relevant Debtor amounts were paid, received or recovered or other person entitled to itthem.
34.24.2 The Security Agent and each other beneficiary of the Security Documents shall make each application as soon as is practicable after the relevant moneys are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Security Agent (acting on the instructions of the Agent), any other beneficiary of the Security Documents or any receiver or administrator may credit any moneys received by it to a suspense account for so long and in such manner as the Security Agent, such other beneficiary of the Security Documents or such receiver or administrator may from time to time determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against the Borrowers or any other person liable.
34.24.3 The Security Agent and/or any other beneficiary of the Security Documents shall obtain a good discharge in respect of the amounts expressed to be due to the other Finance Parties as referred to in this clause 34.24 by paying such amounts to the Agent for distribution in accordance with clause 37 (Payment mechanics).
Appears in 1 contract
Samples: Facility Agreement (DryShips Inc.)
Order of Application. Subject to Clause 15.2 16.2 (Prospective liabilities) and Clause 16.3 (Treatment of SFA Cash Cover and Senior Lender Cash Collateral), all amounts from time to time received or recovered by the Security Agent pursuant to or in connection with the realisation or Enforcement enforcement of all or any part of the Transaction Security or otherwise paid to the Security Agent for application pursuant to this Clause 15 including all amounts received or recovered in connection with the Parallel Debt pursuant to Clause 19.3 (Parallel Debt (Covenant to Pay the Security Agent)) for the purposes of this Clause 1516 (the Recoveries), the “Recoveries”) shall be held by the Security Agent on trust as trustee or as security agent to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 16 (Application of Proceeds)), in the following order of priority:
(a) first, in payment of the following amounts in the following order: (i) pari passu and pro rata discharging any sums owing to the Security Agent, any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts payable to a Senior Secured Notes Trustee, as the case may be; and then (ii) pari passu and pro rata to each Creditor Representative (to the extent not included in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations)Delegate;
(b) second, pari passu and pro rata, in or towards payment of all costs and expenses incurred by the Super Senior Creditors in connection with the realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement Agent or any action taken at the request of the Security Agent;
(c) third, in or towards payment to:
(i) the RCF Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Senior Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility Agreement); and
(ii) the Super Senior Hedge Counterparties, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) above;
(d) fourth, pari passu and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security AgentAgent under Clause 8.6 (Creditors’ and Subordinated Creditors’ actions);
(ec) fifth, in or towards payment to:
(i) the Senior Secured Notes Trustee Agent on its own behalf and on behalf of the Senior Secured Noteholders;Super Priority Lenders; and
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Agent Liabilities and the Super Priority Facility Liabilities (in accordance with the Senior Secured Notes Indentureterms of the Finance Documents and on a pro rata basis between them); and
(B) the Super Priority Hedging Liabilities (on a pro rata basis between the Super Priority Hedging Liabilities of each Hedge Counterparty), on a pro rata basis between paragraphs (A) and (B) above;
(d) in payment to:
(i) the Agent on behalf of the Mandated Lead Arrangers and the Pari passu Lenders; and
(ii) the relevant Hedge Counterparties, for application towards the discharge of:
(A) the Arranger Liabilities and the Pari passu Facility Liabilities (in accordance with the terms of the Finance Documents and on a pro rata basis between them); and
(B) the Pari Passu Debt passu Hedging Liabilities (in accordance with on a pro rata basis between the Pari Passu Debt Documents); and
(C) the Senior Secured passu Hedging Liabilities,
Liabilities of each Hedge Counterparty), on a Pari Passu pro rata basis as between paragraphs (A), (B) and (CB) above;
(fe) sixth, after if none of the Final Discharge DateDebtors is under any further actual or contingent liability under any Finance Document or Hedging Agreement, in payment of to any person to whom the surplus Security Agent is obliged to pay or distribute in priority to any Debtor; and
(f) the balance, if any) , in payment or distribution to the relevant Debtor or other person Debtor. For the avoidance of doubt, references in this Clause 16.1 to sums owing and costs and expenses incurred shall be limited to such sums, costs and expenses as the relevant Secured Party is entitled to itrecover from the Obligors pursuant to the Finance Documents.
Appears in 1 contract
Samples: Intercreditor Agreement
Order of Application. Subject 34.24.1 The Security Agent agrees to Clause 15.2 (Prospective liabilities), all amounts from time to time received or recovered by apply the Trust Property and each other beneficiary of the Security Agent Documents agrees to apply all moneys received by it in connection the exercise of its rights under the Security Documents in accordance with the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid to the Security Agent for application pursuant to this Clause 15 (for the purposes of this Clause 15, the “Recoveries”) shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priorityrespective claims:
(a) first, in payment of as to a sum equivalent to the following amounts in the following order: (i) pari passu and pro rata any sums owing payable to the Security Agent, Agent under the Finance Documents (excluding any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts payable amounts received by the Security Agent pursuant to a Senior Secured Notes Trustee, as the case may be; and then clause 34.11 (ii) pari passu and pro rata to each Creditor Representative (Xxxxxxx’ indemnity to the extent not included in (iAgent) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (extended to the extent that such Security has been given in favour Agent pursuant to clause 34.22 (Application of such obligationscertain clauses to Security Agent)), for the Security Agent absolutely;
(b) secondsecondly, pari passu and pro rata, in or towards payment of all costs and expenses incurred as to a sum equivalent to the amounts payable to the Agent under the Finance Documents (excluding any amounts received by the Super Senior Creditors in connection with Agent pursuant to clause 34.11 (Xxxxxxx’ indemnity to the realisation or enforcement of Agent)), for the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security AgentAgent absolutely;
(c) thirdthirdly, in or towards payment to:
(i) as to a sum equivalent to the RCF Agent on its own behalf aggregate amount then due and on behalf of owing to the RCF other Finance Parties on its own behalf and on behalf of (other than the Arrangers Hedging Providers) under the RCF Facility Finance Documents (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility Agreementbut excluding any Hedging Contracts); and
(ii) the Super Senior Hedge Counterparties, for those Finance Parties absolutely for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) between them in accordance with the terms of the Credit Facility Documents; and
clause 37.5 (B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) abovePartial payments);
(d) fourthfourthly, pari passu and pro rata in or towards payment until such time as the Security Agent is satisfied that all obligations owed to the Senior Secured Notes Trustee Finance Parties (other than the Hedging Providers) have been irrevocably and unconditionally discharged in full, held by the Security Agent on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors a suspense account for application towards any unpaid costs and expenses incurred by or on behalf payment of any Senior Secured Noteholders further amounts owing to those Finance Parties (other than the Hedging Providers) under the Finance Documents (but excluding any Hedging Contracts), and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken further application in accordance with the terms of the Transaction Security Documents this clause 34.24.1 as and this Agreement or when any action taken at the request of the Security Agentsuch amounts later fall due;
(e) fifthfifthly, in or towards payment to:
(i) as to a sum equivalent to the Senior Secured Notes Trustee on behalf of aggregate net amounts then due to the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge CounterpartiesHedging Providers but unpaid under any Hedging Contracts, for application towards the discharge of:
(A) Hedging Providers absolutely, and pro rata to the Senior Secured Notes Liabilities (in accordance with net amounts owing to them under the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents); and
(C) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) aboveContracts;
(f) sixthsixthly, after the Final Discharge Date, in payment of the surplus to such other persons (if any) as are legally entitled thereto in priority to the Obligors; and
(g) seventhly, as to the balance (if any), for the Obligors by or from whom or from whose assets the relevant Debtor amounts were paid, received or recovered or other person entitled to itthem.
34.24.2 The Security Agent and each other beneficiary of the Security Documents shall make each application as soon as is practicable after the relevant moneys are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Security Agent (acting on the instructions of the Agent), any other beneficiary of the Security Documents or any receiver or administrator may credit any moneys received by it to a suspense account for so long and in such manner as the Security Agent, such other beneficiary of the Security Documents or such receiver or administrator may from time to time determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against the Borrowers or any other person liable.
34.24.3 The Security Agent and/or any other beneficiary of the Security Documents shall obtain a good discharge in respect of the amounts expressed to be due to the other Finance Parties as referred to in this clause 34.24 by paying such amounts to the Agent for distribution in accordance with clause 37 (Payment mechanics).
Appears in 1 contract
Order of Application. Subject to Clause 15.2 (Prospective liabilities), all amounts from time to time received or recovered by the Security Agent in connection with the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid to the Security Agent for application pursuant to this Clause 15 (for the purposes of this Clause 15, the “Recoveries”) shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priority:
(a) first, in payment of the following amounts in the following order: (i) pari passu and pro rata any sums owing The Security Trustee agrees to apply the Security Agent, any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts payable to a Senior Secured Notes Trustee, as the case may be; and then (ii) pari passu and pro rata to each Creditor Representative (to the extent not included in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations);
(b) second, pari passu and pro rata, in or towards payment of all costs and expenses incurred by the Super Senior Creditors in connection with the realisation or enforcement of the Transaction Security taken Property in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(c) third, in or towards payment tofollowing respective claims:
(i) first, as to a sum equivalent to the RCF Agent on its own behalf and on behalf of amounts payable to the RCF Finance Parties on its own behalf and on behalf of the Arrangers Security Trustee under the RCF Facility Finance Documents (or following excluding any amounts received by the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility Agreement); and
Security Trustee pursuant to clause 26.15 (ii) the Super Senior Hedge Counterparties, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed Lender’s indemnity to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger LiabilitiesTransaction Agents)) in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) above;
(d) fourth, pari passu and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(e) fifth, in or towards payment to:
(i) the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholdersabsolutely;
(ii) secondly, as to a sum equivalent to the relevant Creditor Representative on behalf of aggregate amount owing to the Pari Passu CreditorsFinance Parties actually or contingently (other than the Security Trustee) under the Finance Documents, for those Finance Parties absolutely, and pro-rata to the amounts owing to them under the Finance Documents;
(iii) thirdly, until such time as the Senior Secured Hedge CounterpartiesSecurity Trustee is satisfied that all obligations owed to the Finance Parties have been irrevocably and unconditionally discharged in full, held by the Security Trustee on a suspense account for payment of any further amounts owing to the Finance Parties under the Finance Documents and further application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture)this paragraph 2 as and when such amounts later fall due;
(Biv) fourthly, to such other persons (if any) as are legally entitled thereto in priority to the Pari Passu Debt (in accordance with the Pari Passu Debt Documents)Obligors; and
(Cv) fifthly, as to the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixth, after the Final Discharge Date, in payment of the surplus balance (if any) for the Obligors absolutely pro-rata to the respective amounts paid, received or recovered from each of them always.
(b) The Security Trustee shall make each application as soon as is practicable after the relevant Debtor monies are received by, or otherwise become available to, it save that (without prejudice to any other provision contained in any of the Security Documents) the Security Trustee (acting on the instructions of the Agent) or any administrator/receiver and manager may credit any monies received by it to a suspense account for so long and in such manner as the Security Trustee or such administrator/receiver and manager may from time to time determine with a view to preserving the rights of the Finance Parties or any of them to prove for the whole of their respective claims against the Borrower or any other person entitled liable.
(c) The Security Trustee shall obtain a good discharge in respect of the amounts expressed to itbe due to the Finance Parties (other than itself) as referred to in this paragraph 2 by paying such amounts to the Agent for distribution in accordance with clause 29 (Payment mechanics).
Appears in 1 contract
Order of Application. Subject to Clause 15.2 (Prospective liabilities)Section 15.7, all amounts from time to time received or recovered by the Security Agent pursuant to the terms of any Debt Document, including without limitation, all amounts received or recovered by the Security Agent pursuant to the terms of any Debt Document or in connection with the realisation realization or Enforcement enforcement of all or any part of the Transaction Security or otherwise paid to a transaction in lieu of enforcement of Transaction Security, the proceeds of any Distressed Disposal and all amounts received by the Security Agent for application from another Creditor pursuant to this Clause 15 Section 11.1 (for the purposes of this Clause Section 15, the “Recoveries”) shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)Section 15), in the following order of priority:
(a) first, in payment of the following amounts in the following orderor distribution to: (i) pari passu and pro rata any sums owing to the Security Agent, any Receiver or any Delegate and for application towards the discharge of any Senior Secured Notes Trustee Amounts payable sums owing to a Senior Secured Notes Trustee, as the case may beany of them from any Party (other than pursuant to Section 17.3); and then (ii) pari passu and pro rata to each Creditor Representative (to the extent not included in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations);
(b) second, pari passu and pro rata, in or towards payment of all costs and expenses incurred by the Super Senior Creditors in connection with the realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(c) third, in or towards payment to:
(i) the RCF Administrative Agent on its own behalf and on behalf of the RCF Finance other Agent Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility Agreement); and
(ii) the Super Senior Hedge Counterparties, for application towards the discharge of:
of the Agent Obligations (A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) above;
(d) fourth, pari passu and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders Facilities Documents); and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(e) fifth, in or towards payment to:
(i) the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, each Pari Passu Debt Representative on its own behalf for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture);
(B) of the Pari Passu Debt Representative Amounts (in accordance with the Pari Passu Debt Documents); and, on a pro rata basis and ranking pari passu between clauses (i), (ii), (iii) and (v) above;
(Cb) second, in payment or distribution to the Secured Parties of all costs and expenses incurred by any of them in connection with any realization or enforcement of the Transaction Security, in each case undertaken in accordance with the terms of this Agreement;
(c) third, in payment or distribution to: (i) the Administrative Agent on its own behalf and on behalf of the Senior Secured Hedging Liabilities,
Lenders for which it is the Representative; (ii) the Hedge Counterparties and the Cash Management Providers; and (iii) each Pari Passu Debt Representative on behalf of Pari Passu Creditors it represents, for application towards the Senior Secured Obligations on a Pari Passu pro rata basis as and pari passu basis between paragraphs such Senior Secured Obligations;
(Ad) fourth, in payment or distribution to each Second Lien Debt Trustee on its own behalf and on behalf of the Second Lien Debt Creditors for which it is the Representative, for application towards the Second Lien Debt Obligations on a pro rata basis and pari passu basis between such Second Lien Debt Obligations;
(e) fifth, in payment or distribution to each Additional Unsecured Debt Representative on behalf of the Additional Unsecured Debt Creditors it represents for application towards the discharge of the Additional Unsecured Debt Obligations owed to the Additional Unsecured Debt Creditors (in accordance with the terms of the Additional Unsecured Debt Documents), (B) and (C) above;; and
(f) sixth, after the Final Discharge Datebalance, if any, in payment of the surplus (if any) or distribution to the relevant Debtor or other person entitled to it.
Appears in 1 contract
Samples: Intercreditor Agreement (Nord Anglia Education, Inc.)
Order of Application. 50.1.1 Subject to Clause 15.2 (Prospective liabilities)the rights of any creditor with prior Security or any preferential claim, all amounts from time to time received paid to, or otherwise recovered by by, the Security Agent in connection with the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid Trustee pursuant to the Security Agent for application pursuant to this Clause 15 (for the purposes of this Clause 15Finance Documents, the “Recoveries”) shall be held by the Security Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priority:
(a) first, in payment of the following amounts applied in the following order: (i) pari passu and pro rata any sums owing to the Security Agent, any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts payable to a Senior Secured Notes Trustee, as the case may be; and then (ii) pari passu and pro rata to each Creditor Representative (to the extent not included in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement (to the extent that such Security has been given in favour of such obligations);:
(bA) second, pari passu and pro ratafirst, in or towards payment of all costs and expenses incurred by the Super Senior Creditors in connection with the realisation or enforcement of the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(c) third, in or towards payment to:
(i) the RCF Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility Agreement); and
(ii) the Super Senior Hedge Counterparties, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed to the Creditor Representatives in respect of each Credit Facility Agreement, the Credit Facility Lender Liabilities and the related Arranger Liabilities) in accordance with the terms of the Credit Facility Documents; and
(B) the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs (A) and (B) above;
(d) fourth, pari passu and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid fees, costs and expenses incurred by or on behalf of the Security Trustee and any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation receiver, attorney, agent or enforcement of similar officer appointed under the Transaction Security taken in accordance with the terms of the Transaction Security Documents and this Agreement or any action taken at the request of other sum due to the Security AgentTrustee (in its capacity as such) but unpaid under the Finance Documents;
(eB) second, in or towards payment pro rata (a) to the First Lien Agent for application by the First Lien Agent under the First Lien Credit Agreement towards the balance of the First Lien Debt comprised by any unpaid fees, costs and expenses of the Administrative Finance Parties under the First Lien Documents and (b) of any unpaid fees, costs and expenses of the Account Bank;
(C) third, in or towards payment pro rata (a) of Hedging Costs due but unpaid under the Secured Hedging Agreements and (b) to the First Lien Agent for application by the First Lien Agent under the First Lien Credit Agreement towards the balance of the First Lien Debt comprised by any accrued interest, commitment fees, commission due but unpaid under the First Lien Documents;
(D) fourth, in or towards payment pro rata (a) of Hedging Termination Payments due to the Hedging Banks but unpaid under the Secured Hedging Agreements and (b) to the First Lien Agent for application by the First Lien Agent under the First Lien Credit Agreement towards the balance of the First Lien Debt comprised by any principal (including amounts payable under clause 6.8 (Claims under a Letter of Credit) or clause 6.10 (Indemnities) of the First Lien Credit Agreement) or any cash cover due but unpaid under the First Lien Documents;
(E) fifth, in or towards payment to:
pro rata (ia) of any other sum due to the Senior Hedging Banks but unpaid under the Secured Notes Trustee on behalf Hedging Agreements and (b) to the First Lien Agent for application by the First Lien Agent under the First Lien Credit Agreement towards the balance of the Senior Secured NoteholdersFirst Lien Debt comprised by any other sum due but unpaid under the First Lien Documents;
(iiF) sixth, in or towards payment to the relevant Creditor Representative on behalf Second Lien Agent for application by the Second Lien Agent under the Second Lien Credit Agreement towards the balance of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents)Second Lien Debt; and
(CG) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixth, after the Final Discharge Dateseventh, in or towards payment of the surplus (if any) to the relevant Debtor Obligor or other person entitled to it.
50.1.2 Subject to Clause 51.3.4, the Security Trustee shall, if so directed by the Relevant Group, vary the order set out in Clauses 50.1.1(A) to 50.1.1(G).
50.1.3 Clauses 50.1.1 and 50.1.2 above will override any appropriation made by an Obligor.
Appears in 1 contract
Samples: Junior Credit Agreement (Endeavour International Corp)
Order of Application. Subject to Clause 15.2 (Prospective liabilities), all amounts a) All moneys from time to time received or recovered by the Security Agents (after payment of any sums received by the Delegate Collateral Agent in connection with the realisation or Enforcement of all or any part of the Transaction Security or otherwise paid to the Security Collateral Agent for application pursuant to this Clause 15 (for the purposes Term Loan Vessel 1 Assignment of this Clause 15, the “Recoveries”KfW Refund Guarantees) shall be held applied by the Security Collateral Agent on trust to apply them at any time as the Security Agent (in its discretion) sees fit, to the extent permitted by applicable law (and subject to the provisions of this Clause 15 (Application of Proceeds)), in the following order of priority:
(a) first, in payment of the following amounts in the following order: (i) pari passu and pro rata any sums owing with respect to the Vessel 1 Shared Security Agent, any Receiver or any Delegate and any Senior Secured Notes Trustee Amounts payable to a Senior Secured Notes Trustee, as the case may be; and then (ii) pari passu and pro rata to each Creditor Representative (to the extent not included in (i) above and excluding any Hedge Counterparty as its own Creditor Representative) of the unpaid fees, costs, expenses and liabilities (and all interest thereon as provided in the relevant Secured Debt Documents) of each such Creditor Representative and any receiver, attorney or agent appointed by such Creditor Representative under any Transaction Security Document or this Agreement only (to the extent that such the Tranche A Intercreditor Agreement is operative), in accordance with the order of priority set out in clause 7.1 (Application of Proceeds) of the Tranche A Intercreditor Agreement and (b) with respect to the Vessel 1 Shared Security has been given (to the extent that the Tranche A Intercreditor Agreement is inoperative) and any other Security (other than Vessel 2 Shared Security and Jewel Shared Security) to which this Deed relates, in favour accordance with the order of such obligations);priority set out in Section 4.05 (Application of Proceeds) of the Credit Agreement.
(b) second, pari passu and pro rata, in All moneys from time to time received or towards recovered by the Agents (after payment of all costs and expenses incurred any sums received by the Super Senior Creditors in connection Delegate Collateral Agent to the Collateral Agent pursuant to the Term Loan Vessel 2 Assignment of KfW Refund Guarantees) shall be applied by the Collateral Agent (a) with respect to the realisation or enforcement of Vessel 2 Shared Security only (to the Transaction Security taken extent that the Tranche B Intercreditor Agreement is operative), in accordance with the terms order of priority set out in clause 7.1 (Application of Proceeds) of the Transaction Tranche B Intercreditor Agreement and (b) with respect to the Vessel 2 Shared Security Documents (to the extent that the Tranche B Intercreditor Agreement is inoperative) and any other Security (other than Vessel 1 Shared Security and Jewel Shared Security) to which this Agreement or any action taken at Deed relates, in accordance with the request order of priority set out in Section 4.05 (Application of Proceeds) of the Security Agent;Credit Agreement.
(c) third, in All moneys from time to time received or towards payment to:
recovered by the Agents shall be applied by the Collateral Agent (ia) the RCF Agent on its own behalf and on behalf of the RCF Finance Parties on its own behalf and on behalf of the Arrangers under the RCF Facility (or following the RCF Discharge Date, each Creditor Representative(s) in with respect of a Credit Facility Agreement on its own behalf and on behalf of the Arrangers and Credit Facility Lenders under that Credit Facility Agreement); and
(ii) the Super Senior Hedge Counterparties, for application towards the discharge of:
(A) the RCF Agent Liabilities and the RCF Liabilities and related Arranger Liabilities (or following the RCF Discharge Date, the Creditor Representative Liabilities owed to the Creditor Representatives in respect of each Credit Facility AgreementJewel Shared Security only (to the extent that the Jewel Intercreditor Agreement is operative), the Credit Facility Lender Liabilities and the related Arranger Liabilities) in accordance with the terms order of priority set out in clauses 3.4, 7.5 and 8 of the Credit Facility Documents; and
Jewel Intercreditor Agreement and (Bb) with respect to the Super Senior Hedging Liabilities, on a pari passu and pro rata basis as between paragraphs Jewel Shared Security (Ato the extent that the Jewel Intercreditor Agreement is inoperative) and any other Security (Bother than Vessel 1 Shared Security and Vessel 2 Shared Security) above;
(d) fourthto which this Deed relates, pari passu and pro rata in or towards payment to the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders and to the relevant Creditor Representative on behalf of the Pari Passu Creditors for application towards any unpaid costs and expenses incurred by or on behalf of any Senior Secured Noteholders and Pari Passu Creditors in connection with any realisation or enforcement of the Transaction Security taken in accordance with the terms order of priority set out in Section 4.05 (Application of Proceeds) of the Transaction Security Documents and this Agreement or any action taken at the request of the Security Agent;
(e) fifth, in or towards payment to:
(i) the Senior Secured Notes Trustee on behalf of the Senior Secured Noteholders;
(ii) the relevant Creditor Representative on behalf of the Pari Passu Creditors;
(iii) the Senior Secured Hedge Counterparties, for application towards the discharge of:
(A) the Senior Secured Notes Liabilities (in accordance with the Senior Secured Notes Indenture);
(B) the Pari Passu Debt (in accordance with the Pari Passu Debt Documents); and
(C) the Senior Secured Hedging Liabilities,
on a Pari Passu basis as between paragraphs (A), (B) and (C) above;
(f) sixth, after the Final Discharge Date, in payment of the surplus (if any) to the relevant Debtor or other person entitled to itCredit Agreement.
Appears in 1 contract
Samples: Credit Agreement (NCL CORP Ltd.)