Common use of Use of Cash Clause in Contracts

Use of Cash. Notwithstanding the provisions of applicable law, if no Event of Default has occurred and is continuing with respect to Buyer and no Termination date has occurred or been designated as a result of an Event of Default with respect to Buyer for which there exists any unsatisfied payment Obligations, then Buyer shall have the right to sell, pledge, rehypothecate, assign, invest, use, comingle or otherwise use in its business any Cash that it holds as Posted Collateral hereunder, free from any claim or right of any nature whatsoever of Seller, including any equity or right of redemption by Seller. Notwithstanding Paragraph 6(a)(ii), if neither Buyer nor the Custodian is eligible to hold Cash pursuant to Paragraph 6(a)(i) then: the provisions of Paragraph 6(a)(ii) will not apply with respect to the Buyer; and the Buyer shall be required to Transfer (or cause to be Transferred) not later than the close of business within five (5) Business Days following such ineligibility all Cash in its possession or held on its behalf to a Qualified Institution to be held in a segregated, safekeeping or custody account (the “Collateral Account”) within such Qualified Institution with the title of the account indicating that the property contained therein is being held as Cash for Buyer. The Qualified Institution shall serve as Custodian with respect to the Cash in the Collateral Account, and shall hold such Cash in accordance with the terms of this CSA and for the security interest of Buyer and execute such account control agreements as are necessary or applicable to perfect the security interest of Seller therein pursuant to Section 9-314 of the Uniform Commercial Code or otherwise, and subject to such security interest, for the ownership and benefit of Seller. The Qualified Institution holding the Cash will invest and reinvest or procure the investment and reinvestment of the Cash in accordance with the written instructions of Buyer, subject to the approval of such instructions by the Seller (which approval shall not be unreasonably withheld). Buyer shall have no responsibility for any losses resulting from any investment or reinvestment effected in accordance with Seller’s approval.

Use of Cash. Notwithstanding the provisions of applicable law, if no Event of Default has occurred and is continuing with respect to Buyer and no Termination date has occurred or been designated as a result of an Event of Default with respect to Buyer for which there exists any unsatisfied payment Obligations, then Buyer shall have the right to sell, pledge, rehypothecate, assign, invest, use, comingle or otherwise use in its business any Cash that it holds as Posted Collateral hereunder, free from any claim or right of any nature whatsoever of Seller, including any equity or right of redemption by Seller. Notwithstanding Paragraph 6(a)(ii), if neither Buyer nor the Custodian is eligible to hold Cash pursuant to Paragraph 6(a)(i) then: the provisions of Paragraph 6(a)(ii) will not apply with respect to the Buyer; and the Buyer shall be required to Transfer (or cause to be Transferred) not later than the close of business within five (5) Business Days following such ineligibility all Cash in its possession or held on its behalf to a Qualified Institution to be held in a segregated, safekeeping or custody account (the “Collateral Account”) within such Qualified Institution with the title of the account indicating that the property contained therein is being held as Cash for Buyer. The Qualified Institution shall serve as Custodian with respect to the Cash in the Collateral Account, and shall hold such Cash in accordance with the terms of this CSA and for the security interest of Buyer and execute such account control agreements as are necessary or applicable to perfect the security interest of Seller therein pursuant to Section 9-314 of the Uniform Commercial Code or otherwise, and subject to such security interest, for the ownership and benefit of Seller. The Qualified Institution holding the Cash will invest and reinvest or procure the investment and reinvestment of the Cash in accordance with the written instructions of BuyerXxxxx, subject to the approval of such instructions by the Seller (which approval shall not be unreasonably withheld). Buyer shall have no responsibility for any losses resulting from any investment or reinvestment effected in accordance with Seller’s approval.

Use of Cash. Notwithstanding (a) The Company shall not, and shall not permit any of its Subsidiaries to, use cash and Cash Equivalents in a manner prohibited or not provided for by this Section 4.06. The Company shall and shall cause its Subsidiaries to apply cash and Cash Equivalents, (i) FIRST, (A) to pay or to fund their respective operating expenses, taxes, reasonable reserves (which reserve amounts shall be determined in good faith by the provisions Company or the Subsidiary setting such reserves) for revolving commitments, unfunded commitments and General Corporate Purposes; (B) to pay, when due, interest on and principal of Permitted Indebtedness of the Company or such Subsidiary (other than, (x) in the case of FINOVA Capital, the Berkadia Loan and the Intercompany Notes and (y) in the case of the Company, the Notes), or to fund a reserve to pay interest on such Permitted Indebtedness due on the next interest payment date; (C) to pay, when due, interest on and principal of any Refinancing Indebtedness incurred to refinance the Permitted Indebtedness that may be paid under clause (B), or to fund a reserve to pay interest on such Refinancing Indebtedness due on the next interest payment date; (D) to pay, when due, interest on the Berkadia Loan, or to fund a reserve to pay interest due during the current and/or next succeeding fiscal quarter on the Berkadia Loan; and (E) to make payments permitted under Section 4.07(b) (provided that any payments described in Section 4.07(b)(v) shall not exceed $1 million per year); provided, however, that the listing of subclauses (A) through (E) herein shall be for ease of reference only and shall not imply or require any priority of allocation or payment within this Section 4.06(a)(i)); (ii) SECOND, to pay to the Company, when due, interest on the Intercompany Notes in an amount equal to the lesser of (a) the amount of accrued and unpaid interest to the next interest payment date under the Intercompany Notes or (b) the amount of cash and Cash Equivalents of the Company and its Subsidiaries at the applicable lawReference Date (after deducting for item (i) above), or to fund a reserve to pay accrued and unpaid interest due on such Intercompany Notes due on the next interest payment date under the Intercompany Notes, and the Company shall use the proceeds of such payments together with any other cash or Cash Equivalents the Company has available for such purpose on such Reference Date, to pay on the corresponding Interest Payment Date accrued and unpaid Fixed Interest on the Notes to that Interest Payment Date; provided, however, that the Company shall not make any payments pursuant to items (iii) through (vii) below if, as a result of such payment and after giving consideration to any cash that is expected to be generated from operations, pending transactions or otherwise, it is not reasonably foreseeable that the Company will have sufficient cash and Cash Equivalents available to pay all accrued and unpaid Fixed Interest to the next Interest Payment Date on that Interest Payment Date. (iii) THIRD, at the option of the Company and with the consent of Berkadia so long as any payment Obligation under the Berkadia Loan is outstanding, to cause FINOVA Capital to make prepayments of principal and accrued and unpaid interest on the Intercompany Notes or to fund a reserve to make such prepayments (after deducting for items (i) and (ii) above); the Company shall use the proceeds from any such prepayments, plus any other cash or Cash Equivalents the Company has available and elects to use for such purpose, to purchase (or to cause a Subsidiary or Subsidiaries to purchase) Notes (including all obligations to pay Contingent Interest in respect of such Notes) at a purchase price not to exceed the outstanding principal amount of such Note plus accrued and unpaid Fixed Interest thereon to the purchase date (the "Maximum Price") through, at the Company's discretion, (1) tender offers, (2) open market purchases and (3) privately negotiated transactions; provided, however, that (A) if no payment Obligation under the Berkadia Loan is outstanding, such prepayments of the Intercompany Notes and purchases of Notes shall not exceed $150.0 million in the aggregate in any single calendar year and (B) in no event will the aggregate amount of such prepayments or uses of cash or Cash Equivalents exceed $1,500,000,000 during such time as any payment Obligation under the Berkadia Loan is outstanding; provided, further, that any such purchases of Notes by the Company shall be made pursuant to procedures adopted by the Company's Board of Directors in good faith to ensure that Berkshire and its Affiliates are not preferred or discriminated against with respect to such purchases, subject to the commitments of Berkshire set forth in the Berkshire Commitment Letter Agreement; (iv) FOURTH, to repay principal of the Berkadia Loan as required under the Berkadia Credit Agreement (after deducting for items (i), (ii) and (iii) above); (v) FIFTH, until the principal of and Fixed Interest on the Notes are each paid in full, to (A) pay to the Company, when due, principal on the Intercompany Notes in an amount equal to the amount of cash and Cash Equivalents of the Company and its Subsidiaries, after deducting for items (i) through (iv) above, at any date (as determined by the Company) on or after the applicable Reference Date, which amounts the Company shall use together with any other cash or Cash Equivalents the Company has available for such purpose on such date to repay principal of the Notes until the principal and accrued and unpaid Fixed Interest have been paid in full, and, at the Company's option, to make prepayments at any time of principal and accrued and unpaid interest on the Intercompany Notes, which amounts the Company shall use together with any other cash or Cash Equivalents the Company has available for such purpose on such date to prepay all or part of the principal and accrued and unpaid Fixed Interest on the Notes pursuant to Section 3.07, and (B) to make distributions in respect of FINOVA Capital's Equity Interests held by the Company, which amounts the Company shall use together with any other cash the Company has available for such purposes to make Restricted Payments unless either (x) the making of any such Restricted Payment would be an Impermissible Restricted Payment, in which event the Company shall retain such amounts and any such retained amounts shall accumulate and shall be used to make Restricted Payments at such time or from time to time when such Restricted Payments are not Impermissible Restricted Payments, or (y) a Default or Event of Default has occurred and is continuing continuing, in which event the Company shall retain such amounts and any such retained amounts shall accumulate and shall, subject to Article 6 hereof, be used to make such Restricted Payments at such time or from time to time when such Default or Event of Default is no longer continuing; provided, however, that each incremental payment of $0.95 pursuant to clause (A) shall require a distribution or retention pursuant to clause (B) of $0.05; (vi) SIXTH, until an amount equal to 5.263% of the aggregate principal amount of the Notes issued under this Indenture in accordance with respect the Plan (whether on the Issue Date or thereafter) has been used either to Buyer (A) make Restricted Payments to the Company's holders of Common Stock under Section 4.06(a)(v)(B) or (B) to make Deemed Restricted Payments, and after deducting for items (i) through (v) above, to make Deemed Restricted Payments, unless the making of such Deemed Restricted Payments would be an Impermissible Deemed Restricted Payment, in which event, for so long as it would be an Impermissible Deemed Restricted Payment, the Company shall retain all such amounts as collateral under the Security Agreements or the Intercompany Notes Pledge Agreement and any such retained amounts shall accumulate and shall be used to make Deemed Restricted Payments at such time, or from time to time, as such payments are not Impermissible Deemed Restricted Payments; provided, however, that no Termination date has occurred or been designated payments shall be made under this item (vi) until repayment in full of principal and accrued and unpaid Fixed Interest on the Notes; and (vii) SEVENTH, until an aggregate of up to $100,000,000 (as such amount may be reduced to reflect a decrease in the principal amount of Notes Outstanding as a result of purchases by the Company of Notes in accordance with Section 4.06(a)(iii) (but not as a result of prepayments or repayments made by the Company in accordance with Section 4.06(a)(v)(A) or Article 3 hereof)) has been paid as Contingent Interest to make distributions on each applicable Interest Payment Date to the Company in an amount equal to cash and Cash Equivalents of the Company and its Subsidiaries, after deducting for uses of cash and Cash Equivalents pursuant to clauses (i) through (vi) above, at any date (as determined by the Company) on or after the applicable Reference Date (A) 95% of which the Company shall use to pay Contingent Interest on each applicable Interest Payment Date pro rata to Holders of Outstanding Notes and (B) 5% of which the Company will use to make Deemed Restricted Payments on each applicable Interest Payment Date (unless the making of such Deemed Restricted Payments would be an Impermissible Deemed Restricted Payment, in which event, for so long as it would be an Impermissible Deemed Restricted Payment, the Company shall retain such amounts as collateral under the Security Agreements or the Intercompany Notes Pledge Agreement, and any retained amounts shall accumulate and shall be used to make Deemed Restricted Payments at such time or from time to time as such payments are not Impermissible Deemed Restricted Payments); provided, further, however, that the Company shall not be required to pay, nor shall it be a Default or Event of Default with not to pay, Contingent Interest after the Contingent Interest Maturity Date, other than Contingent Interest that is due and payable as of the Contingent Interest Payment Date. (b) Funding and payments in respect to Buyer for which there exists of any unsatisfied payment Obligations, then Buyer Refinancing Indebtedness shall have the right same priority in this Section 4.06 as corresponds to sellthe Indebtedness so refinanced. (c) The Company shall make contributions to its Subsidiaries and shall cause its Subsidiaries to make distributions or contributions, pledgeas applicable, rehypothecateto permit the application of cash and Cash Equivalents as set forth in Section 4.06(a); provided, assignhowever, investthat, usenotwithstanding the foregoing, comingle it shall not be a default of this Section 4.06 if a Subsidiary does not make distributions to its parent entity as set forth in Sections 4.06(a)(i)- (vii) above or if interest or principal payments are not made on the Intercompany Notes as set forth in Sections 4.06(a)(ii) and (v) above, or if the Company does not make an interest payment on the Notes as set forth in Section 4.06(a)(ii) above if such dividends, distributions or payments would be Impermissible Restricted Payments or Impermissible Deemed Restricted Payments or would be prohibited by or would result in a default or an event of default under the Berkadia Credit Agreement as in effect on the Issue Date or as amended from time to time for bona fide business purposes (it being understood that the purpose of deferring payments on the Notes is not a bona fide business purpose for amending the Berkadia Credit Agreement). (d) The Company and its Subsidiaries shall hold only those cash equivalents that meet the definition of Cash Equivalents herein. Cash and Cash Equivalents held by the Company and its Subsidiaries in trust, as bailee or otherwise use in its business any Cash that it holds as Posted Collateral hereunder, free from any claim or right for the benefit of any nature whatsoever of Seller, including any equity or right of redemption by Seller. Notwithstanding Paragraph 6(a)(ii), if neither Buyer nor the Custodian is eligible to hold Cash pursuant to Paragraph 6(a)(i) then: the provisions of Paragraph 6(a)(ii) will not apply with respect to the Buyer; and the Buyer shall be required to Transfer (or cause to be Transferred) not later Persons other than the close of business within five (5) Business Days following such ineligibility all Cash in Company or its possession or held on its behalf to a Qualified Institution to Subsidiaries shall not be held in a segregated, safekeeping or custody account (the “Collateral Account”) within such Qualified Institution with the title of the account indicating that the property contained therein is being held as Cash available for Buyer. The Qualified Institution shall serve as Custodian with respect to the Cash in the Collateral Account, and shall hold such Cash in accordance with the terms of this CSA and for the security interest of Buyer and execute such account control agreements as are necessary or applicable to perfect the security interest of Seller therein application pursuant to Section 9-314 4.06. (e) After the filing of any petition in bankruptcy, or the Uniform Commercial Code commencement of any insolvency, reorganization or otherwiselike proceedings, and subject to such security interest, for the ownership and benefit of Seller. The Qualified Institution holding the Cash will invest and reinvest or procure the investment and reinvestment of the Cash in accordance with the written instructions of Buyer, subject relating to the approval of Company, unpaid principal and Interest on the Notes shall continue to include interest accruing at the rate provided in the Notes, whether or not a claim for post-filing or post-petition interest is allowed in such instructions by the Seller (which approval shall not be unreasonably withheld). Buyer shall have no responsibility for any losses resulting from any investment or reinvestment effected in accordance with Seller’s approvalproceeding.

Use of Cash. Notwithstanding the provisions of applicable law, if no Event of Default has occurred and the Exposed Party is continuing with respect to Buyer not a Defaulting Party, and no Early Termination date Date has occurred or been designated as a result of an Event of Default with respect to Buyer for which there exists any unsatisfied payment Obligationsthe Exposed Party, then Buyer the Exposed Party shall have the right to sell, pledge, rehypothecate, assign, invest, use, comingle commingle or otherwise dispose of, or otherwise use in its business any Cash that cash it holds as Posted Collateral hereunderholds, free from any claim or right of any nature whatsoever of Sellerthe Non-Exposed Party, including any equity or right of redemption by Seller. Notwithstanding Paragraph 6(a)(ii)the Non-Exposed Party; provided, however, that if neither Buyer nor the Custodian a party is not eligible to hold Cash cash pursuant to Paragraph 6(a)(iSection VII(a) (such party shall be the "Downgraded Party" and the event that caused it to be ineligible to hold cash shall be a "Credit Rating Event") then: : (1) the provisions of Paragraph 6(a)(iithis Section VII(b) will not apply with respect to the BuyerDowngraded Party; and and (2) the Buyer Downgraded Party shall be required to Transfer deliver (or cause to be Transferreddelivered) not later than the close of business within five (5) on the second Business Days Day following such ineligibility Credit Rating Event all Cash cash in its possession or held on its behalf to a commercial bank or trust company organized under the law of the United States or a political subdivision thereof, with a Credit Rating of at least "A-" by S&P or "A3" in the case of Xxxxx'x ("Qualified Institution Institution"), approved by the non-Downgraded Party (which approval shall not be unreasonably withheld), to be held in a segregated, safekeeping or custody account (the “"Collateral Account”") within such Qualified Institution with the title of the account indicating that the property contained therein is being held as Cash cash for Buyerthe Downgraded Party. The Qualified Institution shall serve as Custodian with respect to the Cash cash in the Collateral Account, and shall hold such Cash cash in accordance with the terms of this CSA Annex and for the security interest of Buyer and execute such account control agreements as are necessary or applicable to perfect the security interest of Seller therein pursuant to Section 9-314 of the Uniform Commercial Code or otherwiseDowngraded Party and, and subject to such security interest, for the ownership and benefit of Seller. The Qualified Institution holding the Cash will invest and reinvest or procure the investment and reinvestment of the Cash in accordance with the written instructions of Buyer, subject to the approval of such instructions by the Seller (which approval shall not be unreasonably withheld). Buyer shall have no responsibility for any losses resulting from any investment or reinvestment effected in accordance with Seller’s approvalnon-Downgraded Party.

Use of Cash. Notwithstanding the provisions of applicable law, if no Event of Default has occurred and is continuing with respect to Buyer and no Termination date has occurred or been designated as a result of an Event of Default with respect to Buyer for which there exists any unsatisfied payment Obligationsthe Secured Party, then Buyer the Secured Party shall have the right to sell, pledge, rehypothecate, assign, invest, use, comingle commingle or otherwise use in its business any Cash that it holds as Posted Collateral Performance Assurance hereunder, free from any claim or right of any nature whatsoever of Sellerthe Pledging Party, including any equity or right of redemption by Seller. Notwithstanding Paragraph 6(a)(ii)the Pledging Party; provided, however, that if neither Buyer nor the a Party or its Custodian is not eligible to hold Cash pursuant to Paragraph 6(a)(iSection 2.6(a) (such Party shall be the "DOWNGRADED PARTY" and the event that caused it or its Custodian to be ineligible to hold Cash shall be a "CREDIT RATING EVENT") then: : (A) the provisions of Paragraph 6(a)(iithis Section 2.6(a)(iii) will not apply with respect to the BuyerDowngraded Party; and and (B) the Buyer Downgraded Party shall be required to Transfer (or cause to be Transferred) not later than the close of business within five (5) on the next Local Business Days Day following such ineligibility Credit Rating Event all Cash in its possession or held on its behalf to a Qualified Institution approved by the non-Downgraded Party (which approval shall not be unreasonably withheld), to be held in a segregated, safekeeping or custody account (the “Collateral Account”"COLLATERAL ACCOUNT") within such Qualified Institution with the title of the account indicating that the property contained therein is being held as Cash for Buyerthe Downgraded Party. The Qualified Institution shall serve as Custodian with respect to the Cash in the Collateral Account, and shall hold such Cash in accordance with the terms of this CSA and for the security interest of Buyer the Downgraded Party and execute such account control agreements as are necessary or applicable to perfect the security interest of Seller the non-Downgraded Party therein pursuant to Section 9-314 of the Uniform Commercial Code or otherwise, and subject to such security interest, for the ownership and benefit of Sellerthe non-Downgraded Party. The Qualified Institution holding the Cash will invest and reinvest or procure the investment and reinvestment of the Cash in accordance with the written instructions of Buyerthe Pledging Party, subject to the approval of such instructions by the Seller Downgraded Party (which approval shall not be unreasonably withheld), provided that the Qualified Institution shall not be required to so invest or reinvest or procure such investment or reinvestment if an Event of Default with respect to the Pledging Party shall have occurred and be continuing. Buyer The Downgraded Party shall have no responsibility for any losses resulting from any investment or reinvestment effected in accordance with Seller’s approval.the Pledging Party's instructions. Gas Sale and Purchase Contract (December 1, 2004)

Use of Cash. Notwithstanding the provisions of applicable law, if the Exposed Party is not a Defaulting Party, no Event of Default Change has occurred and is continuing with respect to Buyer the Exposed Party and no Early Termination date Date or Accelerated Termination Date has occurred or been designated as a result of an Event of Default or an Event of Change with respect to Buyer for which there exists any unsatisfied payment Obligationsthe Exposed Party, then Buyer the Exposed Party shall have the right to sell, pledge, rehypothecate, assign, invest, use, comingle commingle or otherwise dispose of, or otherwise use in its business any Cash that it holds as Posted Collateral hereunderholds, free from any claim or right of any nature whatsoever of Sellerthe Non-Exposed Party, including any equity or right of redemption by Seller. Notwithstanding Paragraph 6(a)(ii)the Non-Exposed Party; provided, however, that if neither Buyer nor the Custodian a party is not eligible to hold Cash pursuant to Paragraph 6(a)(iSection VII(a) (such party shall be the "Downgraded Party" and the event that caused it to be ineligible to hold Cash shall be a "Credit Rating Event") then: : (1) the provisions of Paragraph 6(a)(iithis Section VII(b) will not apply with respect to the BuyerDowngraded Party; and and (2) the Buyer Downgraded Party shall be required to Transfer deliver (or cause to be Transferreddelivered) not later than the close of business within five (5) on the second Business Days Day following such ineligibility Credit Rating Event all Cash in its possession or held on its behalf to a commercial bank or trust company organized under the law of the United States or a political subdivision thereof, with a Credit Rating of at least "A-" by S&P or "A3" in the case of Xxxxx'x ("Qualified Institution Institution"), approved by the non-Downgraded Party (which approval shall not be unreasonably withheld), to be held in a segregated, safekeeping or custody account (the “"Collateral Account”") within such Qualified Institution with the title of the account indicating that the property contained therein is being held as Cash for Buyerthe Downgraded Party. The Qualified Institution shall serve as Custodian with respect to the Cash in the Collateral Account, and shall hold such Cash in accordance with the terms of this CSA Annex and for the security interest of Buyer and execute such account control agreements as are necessary or applicable to perfect the security interest of Seller therein pursuant to Section 9-314 of the Uniform Commercial Code or otherwiseDowngraded Party and, and subject to such security interest, for the ownership and benefit of Seller. The Qualified Institution holding the Cash will invest and reinvest or procure the investment and reinvestment of the Cash in accordance with the written instructions of Buyer, subject to the approval of such instructions by the Seller (which approval shall not be unreasonably withheld). Buyer shall have no responsibility for any losses resulting from any investment or reinvestment effected in accordance with Seller’s approvalnon-Downgraded Party.