Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof. (b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity. (c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 4 contracts
Sources: Security Agreement (Health Management Associates Inc), Credit Agreement (Health Management Associates Inc), Credit Agreement (Health Management Associates Inc)
Application of Proceeds. (a) The proceeds received of any sale of Collateral pursuant to Section 8(b), as well as any Collateral consisting of cash under Section 8(a), shall be applied by the Collateral Agent in respect of any sale ofas follows: First, collection from or other realization upon all or any part to the payment of the Pledged Collateral pursuant to the exercise by reasonable costs and expenses of the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRSTset forth in Section 8(b); Second, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any amounts of the Swissco Obligations owed to the Secured Obligations, including all court costs and the fees and expenses Parties in respect of its agents and legal counsel, the repayment of all advances Loans made by the Collateral Agent hereunder them and outstanding and amounts owing in respect of any LC Disbursement or Letter of Credit or under any Mortgage on behalf of any Pledgor and any other costs Cash Management Arrangement, Commodity Rate Protection Agreement or expenses incurred Interest/Exchange Rate Protection Agreement with a Lender, pro rata as among the Secured Parties in connection accordance with the exercise amount of any right or remedy hereunder or under any Mortgagesuch Swissco Obligations owed them; SECONDThird, to the payment and discharge in full of the Secured Swissco Obligations (the amounts so applied other than those referred to be distributed above), pro rata as among the Secured Parties pro rata in accordance with the amounts amount of the Secured such Swissco Obligations owed to them on them; and Fourth, after payment in full of all the date of any such distribution); THIRDSwissco Obligations, to the applicable PledgorsPledgor, their or the successors or assignsassigns thereof, or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may otherwise direct, any Collateral then remaining. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 4 contracts
Sources: Pledge Agreement, Pledge Agreement (Graftech International LTD), Pledge Agreement (Graftech International LTD)
Application of Proceeds. Subject to each Intercreditor Agreement (a) The proceeds received by if any), the Collateral Agent in respect shall apply the proceeds of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part Collateral, as well as any Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, reasonable costs and expenses incurred by the Collateral Agent (in its capacity as such hereunder or under the Administrative Agent Indenture or any other Indenture Document) and the Trustee in connection with such collection collection, sale, foreclosure or sale realization or reasonable costs, expenses, claims or liabilities of the Collateral Agent or the Trustee otherwise relating to or arising in connection with this Agreement Agreement, the Indenture or any other Indenture Document or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the Trustee hereunder or under the Indenture or any Mortgage other Indenture Document on behalf of any Pledgor and Grantor, any other reasonable costs or expenses incurred by the Collateral Agent or the Trustee in connection with the exercise of any right or remedy hereunder or under the Indenture or any Mortgageother Indenture Document, and any indemnification of the Collateral Agent and the Trustee required by the terms hereunder, under the Indenture or any other Indenture Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata Trustee for distribution in accordance with the amounts priorities set forth in Section 6.10 of the Secured Obligations owed to them on Indenture. Except as otherwise provided herein, the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this AgreementAgreement and each Intercreditor Agreement (if any). Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 4 contracts
Sources: Collateral Agreement (Quotient LTD), Collateral Agreement (Egalet Corp), Collateral Agreement (Quotient LTD)
Application of Proceeds. (a) The Administrative Agent shall apply the proceeds received by the Collateral Agent in respect of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations in accordance with Section 10.2 of the Credit Agreement (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise directdirect in accordance with Section 10.2 of the Credit Agreement. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . The Grantors shall remain liable for any time deficiency if the proceeds of any moneys collected sale or received by disposition of the Collateral are insufficient to pay all Obligations, including any attorneys’ fees and other expenses incurred by Administrative Agent pursuant or any Lender to this Agreement are distributable pursuant to paragraph (a) above to collect such deficiency. Notwithstanding the Existing Senior Notes Trusteeforegoing, and if the Existing Senior Notes Trustee shall notify the proceeds of any collection, sale, foreclosure or realization upon any Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent any Grantor shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability applied to any Excluded Swap Obligation of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence Grantor and shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant instead be applied to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themother Obligations.
Appears in 4 contracts
Sources: Guarantee and Collateral Agreement (Americold Realty Trust), Credit Agreement (Americold Realty Trust), Guarantee and Collateral Agreement (Americold Realty Trust)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale ofof Collateral, collection from or other realization upon all or as well as any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any Note Document or any of the Secured Note Obligations, including without limitation all court costs and the fees and expenses of its agents and legal counselcounsel for the Collateral Agent, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage Note Document on behalf of any Pledgor and Pledgor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Note Document, and all other fees, indemnities and other amounts owing or reimbursable to the Collateral Agent under any Note Document in its capacity as such; SECOND, to the payment in full of the Secured Note Obligations (the amounts so applied to be (i) allocated between principal (or equivalent) and interest in the absolute discretion of the Collateral Agent and (ii) distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured Note Obligations owed to them on the date of any such distribution); and THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 3 contracts
Sources: Collateral Agreement (Verso Paper Holdings LLC), Collateral Agreement (Verso Paper LLC), Indenture (Verso Paper Corp.)
Application of Proceeds. (a) The proceeds received by Subject to the Intercreditor Agreements, the Collateral Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale ofof Collateral, collection from or other realization upon all or as well as any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses and indemnification obligations incurred by the Collateral Agent or the Administrative Agent Trustee in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Noteholder Documents or any of the Secured Notes Obligations, including including, without limitation, all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the Trustee hereunder or under any Mortgage other Noteholder Document on behalf of any Pledgor and Pledgor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Noteholder Document, and all other fees, indemnities and other amounts owing or reimbursable to the Collateral Agent or the Trustee under any Noteholder Document in its capacity as such; SECOND, to the payment in full of the Secured Notes Obligations (the amounts so applied to be distributed among the Indenture Secured Parties pro rata in accordance with the respective amounts of the Secured Notes Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsIssuer, their its successors or assigns, assigns or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . If, after receipt of any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above payment which is applied to the Existing Senior payment of all or any part of any Notes TrusteeObligations, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt Trustee or any Holder is for any reason compelled to surrender such payment or proceeds to any person because such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible set-off, or a diversion of trust funds, or for any other reason, then the Notes Obligations or part thereof intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by such Collateral Agent, Trustee or Holder and the Issuer shall be liable to pay to such Collateral Agent, Trustee and the Holders, and shall indemnify the Collateral Agent, Trustee and the Holders and holds the Collateral Agent, Trustee and the Holders harmless for the amount of such moneys pending the application thereof, payment or proceeds surrendered. The provisions of this paragraph shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired be and remain effective notwithstanding any contrary action which may have been taken by the Collateral Agent orAgent, Trustee or any Holder in reliance upon such payment or application of proceeds, and any such contrary action so taken shall be without prejudice to the absence of such directionCollateral Agent’s, hold such moneys uninvested Trustee’s and the Holders’ rights under this Agreement and shall hold all be deemed to have been conditioned upon such amounts so distributable payment or application of proceeds having become final and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indentureirrevocable. The Collateral Agent provisions of this paragraph shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturitysurvive the termination of this Agreement.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 3 contracts
Sources: Collateral Agreement, Collateral Agreement (Claires Stores Inc), Senior Secured First Lien Notes Indenture (Claires Stores Inc)
Application of Proceeds. (a) The proceeds received by Subject to the Intercreditor Agreement (if any), the Collateral Agent in respect shall apply the proceeds of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured ObligationsCollateral, including all court costs and any Collateral consisting of cash, in the fees and expenses of its agents and legal counsel, order provided for in the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations Credit Agreement.
(the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. b) The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys monies or balances in accordance with this Agreement and the Credit Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination determinations and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied to or by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Collateral Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor Grantor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 4.02 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Collateral Agent or the Existing Senior Notes Trustee of any amounts distributed to themit.
Appears in 3 contracts
Sources: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (Outfront Media Minnesota LLC)
Application of Proceeds. (a) The proceeds received by Administrative Agent shall promptly apply the Collateral Agent in respect proceeds, moneys or balances of any collection or sale ofof Collateral, collection from or other realization upon all or as well as any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative any Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including without limitation all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral any Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor and Pledgor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document, and all other fees, indemnities and other amounts owing or reimbursable to any Agent under any Loan Document in its capacity as such; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsBorrower, their its successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent. If, after receipt of any payment which is applied to the payment of all or any part of any Obligations, any Agent, Lender or other Secured Party is for any reason compelled to surrender such moneys pending payment or proceeds to any person because such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible set-off, or a diversion of trust funds, or for any other reason, then the application thereofObligations or part thereof intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by such Agent, Lender or other Secured Party and the Borrower shall at be liable to pay to such Agent the direction of Lenders, and the Existing Senior Notes Trusteeother Secured Parties, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by and shall indemnify each Agent, the Collateral Agent or, in Lenders and the absence of such direction, hold such moneys uninvested other Secured Parties and shall hold all such amounts so distributable and all such investments each Agent, the Lenders and the net proceeds thereof in trust solely other Secured Parties harmless for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until amount of such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenturepayment or proceeds surrendered. The Collateral Agent provisions of this paragraph shall not be responsible for and remain effective notwithstanding any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent contrary action which may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions been taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Agent, Lender or other Secured Party in reliance upon such payment or application of proceeds, and any information such contrary action so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 taken shall be (subject without prejudice to any decree of any court of competent jurisdiction) final (absent manifest error)such Agent’s, the Lenders’ and the Collateral Agent other Secured Parties’ rights under this Agreement and shall be deemed to have no duty to inquire as to been conditioned upon such payment or application of proceeds having become final and irrevocable. The provisions of this paragraph shall survive the application by the Administrative Agent or the Existing Senior Notes Trustee termination of any amounts distributed to themthis Agreement.
Appears in 3 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (Claires Stores Inc), Guarantee and Collateral Agreement (Claires Stores Inc)
Application of Proceeds. (a) The proceeds All Proceeds collected by the Agent upon any sale, other disposition of or realization upon any of the Collateral, together with all other moneys received by the Collateral Agent in respect hereunder following the occurrence and during the continuance of any sale of, collection from or other realization upon all or any part an Event of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies Default shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts Section 2.16(b) of the Secured Obligations owed to them on the date Credit Agreement
(b) For purposes of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances applying amounts in accordance with this AgreementSection, the Agent shall be entitled to rely upon any Secured Party that has entered into a Swap Obligation with any Pledgor or provided any cash management services to any Pledgor for a determination (which such Secured Party agrees to provide or cause to be provided upon request of the Agent) of the outstanding Swap Obligations or Banking Services Obligations owed to such Secured Party. Unless it has actual knowledge (including by way of written notice from any such Secured Party) to the contrary, the Agent, in acting hereunder, shall be entitled to assume that no Swap Obligations or Banking Services Obligations or Secured Obligations in respect thereof are in existence between any Secured Party and any Pledgor.
(c) Each Pledgor shall remain liable to the extent of any deficiency between the amount of all Proceeds realized upon sale, other disposition or collection of the Collateral, and monies held as Collateral pursuant to this Agreement and the aggregate amount of Secured Obligations. Upon any sale of any Collateral hereunder by the Collateral Agent (including pursuant to a whether by virtue of the power of sale granted by statute or under a herein granted, pursuant to judicial proceeding, or otherwise), the receipt of by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold sold, and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 3 contracts
Sources: Pledge and Security Agreement (Usec Inc), Pledge and Security Agreement (Usec Inc), Pledge and Security Agreement (Usec Inc)
Application of Proceeds. (a) The proceeds Subject to the terms of any applicable intercreditor agreement contemplated by this Agreement, in connection with the exercise of remedies provided for in Section 7.01, any amounts received by on account of the Collateral Agent Secured Obligations (including in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant (including any Collateral consisting of cash) or the Guarantees) shall be applied by the Administrative Agent to the exercise by payment of the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, Secured Obligations as follows: FIRST:
(i) first, to the payment of all fees, reasonable and documented or invoiced out of pocket costs and expenses incurred by the Collateral Agent in connection with such sale, collection, other realization or otherwise and to the payment of all other amounts owing to each of the Administrative Agent and the Collateral Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all reasonable and documented or invoiced out of pocket court costs and the fees and expenses of its agents and legal counselagents, the repayment of all advances made by the Collateral Agent hereunder or it under any Mortgage Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECONDLoan Document, in each case, if and to the extent payable pursuant to the terms of the Loan Documents;
(ii) second, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution)) in accordance with this Agreement;
(iii) third, to any agent of any other junior secured debt, in accordance with any applicable intercreditor agreement; THIRDand
(iv) fourth, to the applicable PledgorsBorrower, their its successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above Notwithstanding anything to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent contrary in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwiseSection 7.03(a), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant Excluded Swap Obligations with respect to the Existing Senior Notes Indenture. The Collateral Agent any Subsidiary Loan Party shall not be responsible for any diminution in funds resulting paid with amounts received from any such investment Subsidiary Loan Party or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02its assets, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the Existing Senior Notes allocation to Secured Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken otherwise set forth in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error7.03(a), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 3 contracts
Sources: Credit Agreement (E2open Parent Holdings, Inc.), Credit Agreement (E2open Parent Holdings, Inc.), Credit Agreement (Tenable Holdings, Inc.)
Application of Proceeds. (a) The proceeds received by Collateral Agent may, in the sole discretion of the Collateral Agent in respect Agent, apply the proceeds of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this AgreementCollateral, as followswell as any Collateral consisting of cash against the respective Obligations of the relevant Grantor then due and owing in the following order of priority: FIRST, to the payment of all fees, reasonable costs and reasonable expenses incurred by the Collateral Agent or the Administrative Agent hereunder in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured ObligationsObligations of the relevant Grantor then due and owing, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all reasonable advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor such Grantor and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgagehereunder; SECOND, to the payment in full of the Secured Obligations of the relevant Grantor then due and owing (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured such Obligations owed then due and owing to them on the date of any such distribution); and THIRD, to the applicable Pledgorsrelevant Grantor, their its successors or assigns, or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 3 contracts
Sources: Security Agreement (Dirsamex Sa De Cv), Security Agreement (Jafra Cosmetics International Sa De Cv), Credit Agreement (Jafra Cosmetics International Sa De Cv)
Application of Proceeds. (a) The proceeds received by Subject to the terms of the Intercreditor Agreement, the Notes Collateral Agent shall apply the proceeds of any collection or sale of Collateral, including any Collateral consisting of cash, as follows: First, to pay Obligations in respect of any sale of, collection from or other realization upon all or any part incurred and unpaid fees and expenses of the Pledged Notes Collateral pursuant Agent and the Trustee under the Notes Documents; Second, towards payment of amounts then due and owing and remaining unpaid in respect of the Obligations, pro rata among the Secured Parties according to the exercise by amounts of the Collateral Agent Obligations then due and owing and remaining unpaid to the Secured Parties. Third, towards payment of its remedies shall be appliedany remaining Obligations, together with any other sums pro rata among the Secured Parties according to the amounts of the Obligations then held by the Collateral Agent pursuant to this AgreementSecured Parties; and Last, as follows: FIRST, any balance remaining after the Obligations shall have been paid in full shall be paid over to the payment of all fees, costs and expenses incurred by Issuer or to whomsoever may be lawfully entitled to receive the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise directsame. The Notes Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Notes Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Notes Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Notes Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination determinations and allocations required by this Section 4.023.02, the Notes Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Notes Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor Grantor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Notes Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.this
Appears in 3 contracts
Sources: Intellectual Property Security Agreement (Freescale Semiconductor, Ltd.), Intellectual Property Security Agreement (Freescale Semiconductor Holdings I, Ltd.), Intellectual Property Security Agreement (Freescale Semiconductor Holdings I, Ltd.)
Application of Proceeds. (a) The proceeds received by Administrative Agent shall promptly apply the Collateral Agent in respect proceeds, moneys or balances of any collection or sale ofof Collateral, collection from or other realization upon all or as well as any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including without limitation all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor and Pledgor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document, and all other fees, indemnities and other amounts owing or reimbursable to the Administrative Agent under any Loan Document in its capacity as such; SECOND, to payment of all fees, indemnities and other amounts (other than principal and interest) payable to the Issuing Bank in capacity as such and of any amount required to be paid to the Issuing Bank by any Revolving Facility Lender pursuant to Section 2.05(e) and (h) of the Credit Agreement and not paid by such Revolving Facility Lender (which shall be payable to the Administrative Agent if the Administrative Agent advanced such payment to the Issuing Bank in anticipation of such payment by such Revolving Facility Lender and otherwise, to the Issuing Bank); THIRD, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured Obligations owed to them on the date of any such distribution, which in the case of Letters of Credit, shall be paid by deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Issuing Bank and the Lenders, an amount in cash in U.S. Dollars equal to the aggregate Revolving L/C Exposure as of such date plus any accrued and unpaid interest thereon); THIRDand FOURTH, to the applicable PledgorsBorrower, their its successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral purchase money by the Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent. If, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant any payment which is applied to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment payment of all or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02part of any Obligations, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as or any Lender is for any reason compelled to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability surrender such payment or proceeds to any person because such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible set-off, or a diversion of trust funds, or for any other reason, then the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant Obligations or part thereof intended to this Section 10.1 be satisfied shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), revived and the Collateral Agent continued and this Agreement shall have no duty to inquire continue in full force as to the application if such payment or proceeds had not been received by the Administrative Agent or such Lender and the Existing Senior Notes Trustee Borrower shall be liable to pay to the Administrative Agent and the Lenders, and shall indemnify the Administrative Agent and the Lenders and holds the Administrative Agent and the Lenders harmless for the amount of such payment or proceeds surrendered. The provisions of this paragraph shall be and remain effective notwithstanding any amounts distributed contrary action which may have been taken by the Administrative Agent or any Lender in reliance upon such payment or application of proceeds, and any such contrary action so taken shall be without prejudice to themthe Administrative Agent’s and the Lenders’ rights under this Agreement and shall be deemed to have been conditioned upon such payment or application of proceeds having become final and irrevocable. The provisions of this paragraph shall survive the termination of this Agreement.
Appears in 3 contracts
Sources: Guarantee and Collateral Agreement, Guarantee and Collateral Agreement (Claires Stores Inc), Credit Agreement (Claires Stores Inc)
Application of Proceeds. (a) The proceeds received by Subject to the terms of any applicable Intercreditor Agreement, the First Lien Collateral Agent in respect shall apply the proceeds of any collection or sale ofof Collateral, collection from or other realization upon all or including any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the First Lien Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other First Lien Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the First Lien Collateral Agent hereunder or under any Mortgage other First Lien Loan Document on behalf of any Pledgor Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother First Lien Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to any agent of any other junior secured debt, in accordance with any applicable intercreditor agreement; and FOURTH, to the applicable PledgorsLoan Parties, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The First Lien Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the First Lien Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the First Lien Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the First Lien Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the First Lien Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant supplied to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire it as to the application by amounts of unpaid principal and interest and other amounts outstanding with respect to the Administrative Agent Secured Obligations. Notwithstanding the foregoing, Excluded Swap Obligations with respect to any Subsidiary Loan Party shall not be paid with amounts received from such Subsidiary Loan Party or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the Existing Senior Notes Trustee of any amounts distributed allocation to themSecured Obligations otherwise set forth above.
Appears in 3 contracts
Sources: Credit Agreement (Sotera Health Co), Credit Agreement (Sotera Health Co), Credit Agreement (Sotera Health Topco, Inc.)
Application of Proceeds. Subject to any applicable Intercreditor Agreement, the Mortgagee shall apply the proceeds of any collection or sale of the Mortgaged Property at any time after receipt in the order set forth below:
(a) The proceeds received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRSTfirst, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent Mortgagee in connection with such collection or sale or otherwise in connection with this Agreement Mortgage, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent Mortgagee hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Mortgagor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECONDother Loan Document;
(b) second, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRDand
(c) third, to the applicable PledgorsMortgagor, their its successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent Mortgagee shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this AgreementMortgage. Upon any sale of Collateral Mortgaged Property by the Collateral Agent Mortgagee (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent Mortgagee or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral Mortgaged Property so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent Mortgagee or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 3 contracts
Sources: First Lien Credit Agreement (Endeavor Group Holdings, Inc.), First Lien Credit Agreement (Endeavor Group Holdings, Inc.), Second Lien Collateral Agreement (Endeavor Group Holdings, Inc.)
Application of Proceeds. (a) The All proceeds received collected by the Collateral Administrative Agent in respect of upon any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part of the Pledged Collateral (including without limitation any distribution pursuant to the exercise by the a plan of reorganization), including any Collateral Agent consisting of its remedies cash, shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, applied as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent (in its capacity as such hereunder or under any other Loan Document) in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured all Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable PledgorsLoan Parties, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. In addition, in the event that the Administrative Agent receives any non-cash distribution upon any collection, sale, foreclosure or other realization upon any Collateral, such non-cash distribution shall be allocated in the manner described above, with the value of such non-cash distribution being reasonably determined by the Administrative Agent; provided that the Administrative Agent shall apply any cash distribution in accordance with this Section 7.2 prior to application of any such non-cash distribution. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 3 contracts
Sources: Credit Agreement (New Fortress Energy LLC), Credit Agreement (New Fortress Energy LLC), Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Application of Proceeds. Subject to the ABL Intercreditor Agreement, the First Lien/Second Lien Intercreditor Agreement and the Second Lien/Second Lien Intercreditor Agreement (a) The proceeds received by if entered into), upon the occurrence and during the continuance of an Event of Default, the Collateral Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to realized through the exercise by the Collateral Agent of its remedies shall be appliedhereunder, together as well as any Collateral consisting of cash at any time when remedies are being exercised hereunder, in accordance with any other sums then held by Section 6.10 of the Collateral Agent pursuant to this Notes Indenture, Section 2.01 of the ABL Intercreditor Agreement or Section 4.2 of the First Lien/Second Lien Intercreditor Agreement, as follows: FIRSTapplicable, to the payment of all feesor, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this after a Second Lien/Second Lien Intercreditor Agreement or any of the Secured Obligationshas been entered into, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise directSecond Lien/Second Lien Intercreditor Agreement. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Collateral Agreement (Second Lien) (DS Services of America, Inc.), Collateral Agreement (Second Lien) (DS Services of America, Inc.)
Application of Proceeds. (a) The Collateral Agent shall promptly apply the proceeds, moneys or balances of any collection or sale of Collateral, as well as any Collateral consisting of cash, and the proceeds of any property insurance policy or other insurance policy received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Administrative Agent and the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent and the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured Obligations owed to them on the date of any such distribution, it being understood that with respect to any distributions to the Lenders, Issuing Banks or the Agents, the amounts so applied shall be distributed to the Administrative Agent to be applied in accordance with Section 9.23 of the Credit Agreement); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Credit Agreement (Crestwood Midstream Partners LP), Credit Agreement (Crestwood Midstream Partners LP)
Application of Proceeds. (a) The Subject to the terms of the Intercreditor Agreement, all cash proceeds received by the Collateral Agent in respect of any sale of, collection from from, or other realization upon all or any part of the Pledged Collateral pursuant to the exercise shall be promptly applied by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST:
(a) First, to the payment of all that portion of the Secured Obligations constituting fees, costs indemnities, expenses and expenses other amounts payable to the Agents and incurred by the Collateral Agent or the Administrative Agent Agents in connection with such sale, collection or sale other realization, or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent Agents hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Obligor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECONDother Loan Document;
(b) Second, to the payment in full of the Secured Obligations (Obligations, the amounts so applied to be distributed among the Secured Parties pro rata as specified in accordance with the amounts Section 9.21 of the Credit Agreement; and
(c) Last, the balance, if any, after all Secured Obligations owed to them on the date of any such distribution); THIRDhave been indefeasibly paid in full, to the applicable PledgorsBorrower (to be distributed among the Obligors, their successors or assigns, at the discretion of the Borrower) or as a court of competent jurisdiction may otherwise directrequired by applicable law. The Collateral Agent Agent, acting at the written direction of the Administrative Agent, shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this AgreementAgreement and the other Loan Documents. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Summit Midstream Partners, LP), Guarantee and Collateral Agreement (Summit Midstream Partners, LP)
Application of Proceeds. (a) The proceeds received by Subject to the terms of the Collateral Agent in respect Agency and Intercreditor Agreement, the Collateral Trustee shall apply the proceeds of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the as well as any Collateral Agent consisting of its remedies shall be appliedcash, together with at any other sums then held by the Collateral Agent pursuant to this Agreement, time after receipt as follows: FIRST:
(i) first, to the payment of all fees, reasonable and documented costs and expenses incurred by the Collateral Agent or the Administrative Agent Trustee in connection with such collection or sale or otherwise in connection with this Agreement Security and Pledge Agreement, the other Credit Documents or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent Trustee hereunder or under any Mortgage other Credit Document on behalf of any Pledgor Grantor and any other reasonable and documented costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECONDother Credit Document;
(ii) second, to the payment in full of the Secured Parties, an amount equal to all Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed owing to them on the date of any distribution, and, if such distribution); THIRDmoneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the applicable Pledgorsunpaid amounts thereof; and
(iii) third, any surplus then remaining shall be paid to the Grantors or their successors or assigns, assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent Trustee (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent Trustee or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent Trustee or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Security and Pledge Agreement, Security and Pledge Agreement (Intelsat S.A.)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall, subject to the Intercreditor Agreements, promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this AgreementCollateral, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured ObligationsObligations secured by such Collateral, including including, without limitation, all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor and Pledgor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document, and all other fees, indemnities and other amounts owing or reimbursable to the Collateral Agent under any Loan Document in its capacity as such; SECOND, to the payment in full of the Obligations (excluding Obligations with respect to Secured Hedge Agreements and Secured Cash Management Agreements that are not Designated Secured Hedge Agreements or Designated Secured Cash Management Agreements) secured by such Collateral (the amounts so applied to be distributed among the Secured Parties in accordance with the order of priority set forth in Section 2.18(b) of the Credit Agreement based on respective amounts of such Obligations owed to them on the date of any such distribution); THIRD, to the payment in full of the Obligations in respect of Secured Hedge Agreements and Secured Cash Management Agreements (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured such Obligations owed to them on the date of any such distribution); THIRDand FOURTH, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Notwithstanding the foregoing, no amount received from any Guarantor, or from the proceeds of Collateral pledged by such Guarantor, shall be applied to any Excluded Swap Obligations of such Guarantor. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Collateral Agreement (Momentive Performance Materials Inc.), Collateral Agreement (Momentive Performance Materials Inc.)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply the proceeds, moneys or balances of any collection or sale ofof Collateral, collection from or other realization upon all or as well as any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Applicable Agent and the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Applicable Agent and the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (TRW Automotive Inc), Guarantee and Collateral Agreement (TRW Automotive Inc)
Application of Proceeds. (a) The Administrative Agent shall apply the proceeds received by the Collateral Agent in respect of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part of the Pledged Collateral, including any Pledged Collateral pursuant to the exercise by the Collateral Agent consisting of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document, in each case subject to the limitations set forth in the Credit Agreement; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Pledged Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Pledged Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . The Grantors shall remain liable for any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and deficiency if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee proceeds of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof any sale or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction disposition of the Existing Senior Notes TrusteePledged Collateral are insufficient to pay all Secured Obligations, invest including any attorneys’ fees and other expenses incurred by Administrative Agent or any Lender to collect such amounts in Eligible Securities maturing within 90 days after they are acquired by deficiency. Notwithstanding the foregoing, the proceeds of any collection, sale, foreclosure or realization upon any Pledged Collateral Agent orof any Grantor, in the absence including any collateral consisting of such directioncash, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability applied to any Excluded Swap Obligation of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence Grantor and shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant instead be applied to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themother secured obligations.
Appears in 2 contracts
Sources: Credit Agreement (Knowles Corp), Credit Agreement (Knowles Corp)
Application of Proceeds. (a) The proceeds received by Administrative Agent shall promptly apply the Collateral Agent in respect proceeds, moneys or balances of any collection or sale ofof Collateral, collection from or other realization upon all or as well as any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative any Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including without limitation all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral any Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor and Pledgor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document, and all other fees, indemnities and other amounts owing or reimbursable to any Agent under any Loan Document in its capacity as such; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsBorrower, their its successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent. If, after receipt of any payment which is applied to the payment of all or any part of any Obligations, any Agent, Lender or other Secured Parties is for any reason compelled to surrender such moneys pending payment or proceeds to any person because such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible set-off, or a diversion of trust funds, or for any other reason, then the application thereofObligations or part thereof intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by such Agent, Lender or other Secured Party and the Borrower shall at be liable to pay to such Agent, the direction of Lenders and the Existing Senior Notes Trusteeother Secured Parties, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by and shall indemnify each Agent, the Collateral Agent or, in Lenders and the absence of such direction, hold such moneys uninvested other Secured Parties and shall hold all such amounts so distributable and all such investments each Agent, the Lenders and the net proceeds thereof in trust solely other Secured Parties harmless for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until amount of such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenturepayment or proceeds surrendered. The Collateral Agent provisions of this paragraph shall not be responsible for and remain effective notwithstanding any diminution contrary action which may have been taken by any Agent, Lender or other Secured Parties in funds resulting from reliance upon such payment or application of proceeds, and any such investment or any liquidation thereof prior contrary action so taken shall be without prejudice to maturity.
(c) In making the determination and allocations required by this Section 4.02such Agents’, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, Lenders’ and the Collateral Agent shall have no liability to any of the other Secured Parties for actions taken in reliance on such information, provided that nothing in Parties’ rights under this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 Agreement and shall be (subject deemed to any decree have been conditioned upon such payment or application of any court proceeds having become final and irrevocable. The provisions of competent jurisdiction) final (absent manifest error), and this paragraph shall survive the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee termination of any amounts distributed to themthis Agreement.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Claires Stores Inc), Term Loan Credit Agreement (Claires Stores Inc)
Application of Proceeds. (a) The proceeds received by Administrative Agent shall promptly apply the Collateral Agent in respect proceeds, moneys or balances of any collection or sale ofof Collateral, collection from or other realization upon all or as well as any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Guaranteed Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Guaranteed Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured Guaranteed Obligations owed to them on the date of any such distribution); and THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Notwithstanding the foregoing, amounts received from any Pledgor or Guarantor shall not be applied to any Excluded Swap Obligation of such Pledgor or Guarantor, as applicable. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral purchase money by the Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Credit Agreement (Chart Industries Inc), Credit Agreement (Chart Industries Inc)
Application of Proceeds. (a) The proceeds received Collateral Agent shall, subject to the terms of any Applicable Intercreditor Agreement (and any other applicable intercreditor agreement contemplated by the Collateral Agent in respect Credit Agreement) apply the proceeds of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured ObligationsCollateral, including all court costs and the fees and expenses any Collateral consisting of its agents and legal counselcash, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts Section 8.04 of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Credit Agreement.
(b) The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money therefor by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination determinations and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor Grantor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 4.02 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themit.
Appears in 2 contracts
Sources: Credit Agreement (ServiceTitan, Inc.), Credit Agreement (ServiceTitan, Inc.)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply the proceeds of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to (including all proceeds from the exercise by sale of Pledged Securities that exceed the Maximum Debtor Principal Amount), including any Pledged Collateral Agent consisting of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, reasonable costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with or reasonably related or reasonably incidental to such collection or sale or otherwise in connection with or related or incidental to this Pledge Agreement or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent (in its sole discretion) hereunder or under any Mortgage on behalf of any Pledgor the Borrower and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgagehereunder; SECOND, to the payment to RUS in full of the Secured Obligations (the amounts so applied Obligations; such payment to be distributed among for an amount certified in a RUS Notice delivered to the Secured Parties pro rata in accordance with Collateral Agent as being the amounts of amount due and owing to RUS under the Secured Obligations owed to them on the date of any such distribution)Obligations; and THIRD, to the applicable PledgorsBorrower, their its successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Pledged Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Pledged Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Pledge Agreement (National Rural Utilities Cooperative Finance Corp /Dc/), Pledge Agreement (National Rural Utilities Cooperative Finance Corp /Dc/)
Application of Proceeds. (a) The proceeds received by Subject to each Intercreditor Agreement, the Collateral Agent in respect shall apply the proceeds of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part Collateral, as well as any Collateral consisting of the Pledged Collateral pursuant to cash, resulting from the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, following an Event of Default as follows: FIRST, to the payment of all fees, reasonable costs and expenses incurred by the Collateral Agent (in its capacity as such hereunder or under the Administrative Agent Indenture or any other Indenture Document) and the Trustee in connection with such collection collection, sale, foreclosure or sale realization or reasonable costs, expenses, claims or liabilities of the Collateral Agent or the Trustee otherwise relating to or arising in connection with this Agreement Agreement, the Indenture or any other Indenture Document or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the Trustee hereunder or under the Indenture or any Mortgage other Indenture Document on behalf of any Pledgor and Grantor, any other reasonable costs or expenses incurred by the Collateral Agent or the Trustee in connection with the exercise of any right or remedy hereunder or under the Indenture or any Mortgageother Indenture Document, and any indemnification of the Collateral Agent and the Trustee required by the terms hereunder, under the Indenture or under any other Indenture Document; and SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata Trustee for distribution in accordance with the amounts priorities set forth in Section 6.10 of the Secured Obligations owed to them on Indenture. Except as otherwise provided herein, the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement and each Intercreditor Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold sold, and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Collateral Agreement (Aquestive Therapeutics, Inc.), Collateral Agreement (Aquestive Therapeutics, Inc.)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall, subject to the Intercreditor Agreement, promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this AgreementCollateral, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement the Indenture, any other Indenture Document or any of the Secured ObligationsObligations secured by such Collateral, including without limitation all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances (if any) made by the Collateral Agent hereunder under the Indenture or under any Mortgage other Indenture Document on behalf of any Pledgor and Pledgor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Indenture Document, and all other fees, indemnities and other amounts owing or reimbursable to the Collateral Agent under any Indenture Document in its capacity as such; SECOND, to the payment in full of the Secured Obligations secured by such Collateral (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured such Obligations owed to them on the date of any such distribution); and THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Second Lien Collateral Agreement, Second Lien Collateral Agreement (Momentive Performance Materials Inc.)
Application of Proceeds. (a) The proceeds received After the occurrence and during the continuance of an Event of Default, any money collected by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent Trustee pursuant to this Agreement, Agreement or any other Security Document shall be applied by the Trustee as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent Trustee (in its capacity as such hereunder and under the other Security Documents or as Trustee under the Administrative Agent Indenture) in connection with such the management, operation and maintenance of any Collateral after an Event of Default and any collection or sale of the Collateral or otherwise in connection with this Agreement Agreement, any other Security Document or any of the Secured Security Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent Trustee hereunder or under any Mortgage other Security Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Security Document; SECOND, to the Trustee payment in full of the Secured Security Obligations (the amounts so applied to be distributed among the Secured Parties holders of Securities pro rata in accordance with the amounts of the Secured Security Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their respective successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent Trustee shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent Trustee (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent Trustee or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent Trustee or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Indenture (Cone Mills Corp), Indenture (Cone Mills Corp)
Application of Proceeds. (a) The Administrative Agent shall apply the proceeds received by the Collateral Agent in respect of any collection or sale ofof Collateral, collection from or other realization upon all or including any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, (a) if the security interest of the Administrative Agent in such Collateral secures the Secured Obligations, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution) and (b) if the security interest of the Administrative Agent in such Collateral secures solely the Foreign Secured Obligations and does not secure any other Secured Obligations, to the payment in full of the Foreign Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Foreign Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsLoan Parties, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . Notwithstanding the foregoing, the proceeds of any time collection or sale of Collateral of any moneys collected or received by the Grantor, including any Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trusteeconsisting of cash, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any applied to Excluded Swap Obligations (if any) of such investment or any liquidation thereof prior Grantor and shall instead be applied to maturityother Secured Obligations.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Credit Agreement (Vishay Intertechnology Inc), Credit Agreement (Vishay Intertechnology Inc)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply the proceeds of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part Collateral, as well as any Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all feesactual, reasonable and documented costs and expenses incurred by the Collateral Agent (in its capacity as such hereunder or under the Administrative Agent Indenture or any other Indenture Document) and the Trustee in connection with such collection collection, sale, foreclosure or sale realization or reasonable costs, expenses, claims or liabilities of the Collateral Agent or the Trustee otherwise relating to or arising in connection with this Agreement Agreement, the Indenture or any other Indenture Document or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the Trustee hereunder or under the Indenture or any Mortgage other Indenture Document on behalf of any Pledgor and Grantor, any other reasonable costs or expenses incurred by the Collateral Agent or the Trustee in connection with the exercise of any right or remedy hereunder or under the Indenture or any Mortgageother Indenture Document, and any indemnification of the Collateral Agent and the Trustee required by the terms hereunder, under the Indenture or any other Indenture Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata Trustee for distribution in accordance with the amounts priorities set forth in Section 6.10 of the Secured Obligations owed to them on Indenture. Except as otherwise provided herein, the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Collateral Agreement (Vickers Vantage Corp. I), Collateral Agreement (Sorrento Therapeutics, Inc.)
Application of Proceeds. (a) The Subject to applicable law, the Administrative Agent shall apply the proceeds received by the Collateral Agent in respect of any collection or sale ofof Collateral, collection from or other realization upon all or including any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document in its capacity as such; SECOND, to the payment in full of the Secured Obligations secured by such Collateral (the amounts so applied to be distributed among the applicable Secured Parties pro rata in accordance with the amounts of the applicable Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by . Notwithstanding the foregoing, no Proceeds of Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to securing solely the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Foreign Secured Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject applied to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themDomestic Secured Obligations.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Harman International Industries Inc /De/), Guarantee and Collateral Agreement (Harman International Industries Inc /De/)
Application of Proceeds. (a) The So long as the Discharge of First-Lien Obligations has not occurred, any proceeds of any Collateral pursuant to the enforcement of any Security Document or the exercise of any remedial provision thereunder, together with all other proceeds received by any Creditor (including all funds received in respect of post-petition interest or fees and expenses) as a result of any such enforcement or the Collateral Agent exercise of any such remedial provision or as a result of any distribution of or in respect of any sale ofCollateral (whether or not expressly characterized as such) upon or in any Insolvency or Liquidation Proceeding with respect to any Grantor, collection from or other realization upon all the application of any Collateral (or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, proceeds thereof) to the payment thereof or any distribution of all feesCollateral (or proceeds thereof) upon the liquidation or dissolution of any Grantor, costs and expenses incurred shall be applied by the First-Lien Collateral Agent or to the Administrative Agent First-Lien Obligations in connection with such collection or sale or otherwise order as specified in connection with this Agreement or the relevant First-Lien Security Document (it being understood that any payment of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Second-Lien Collateral Agent hereunder shall not constitute a distribution of or under in respect of Collateral for purposes of this Agreement, provided, however, that this understanding does not constitute and may not be construed as an agreement or consent of the First-Lien Collateral Agent or any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, First-Lien Creditors to the payment in full of the Secured Obligations (Second-Lien Collateral Agent’s fees or expenses in any respects). Upon the amounts so applied to be distributed among Discharge of First-Lien Obligations, the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, First-Lien Collateral Agent shall deliver to the applicable PledgorsSecond-Lien Collateral Agent any proceeds of Shared Collateral held by it in the same form as received, their successors or assigns, with any necessary endorsements or as a court of competent jurisdiction may otherwise direct. The , to be applied by the Second-Lien Collateral Agent shall have absolute discretion as to the time of application of any Second-Lien Subordinated Obligations in such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, order as specified in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturitySecond-Lien Subordinated Security Documents.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Indenture (CMP Susquehanna Radio Holdings Corp.), Intercreditor Agreement (CMP Susquehanna Radio Holdings Corp.)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply the proceeds of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral, as well as any Collateral pursuant to the exercise by the Collateral Agent consisting of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Administrative Agent or the Administrative Collateral Agent (in its capacity as such hereunder or under any other Loan Document) in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, Obligations including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred by the Collateral Agent or the Administrative Agent in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . For purposes of making any time payment hereunder in respect of any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02DVA Obligations, the Collateral Agent may conclusively rely upon information supplied any statement or certificate presented to it by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding any Grantor or DVA Creditor (or any agent for such DVA Creditor) with respect to the Existing Senior Notes Obligations amount of such DVA Obligation, and information supplied any distribution by the Administrative Collateral Agent as of funds to any agent for any of the amounts DVA Creditors shall be sufficient to discharge the obligations of unpaid principal and interest and other amounts outstanding with the Collateral Agent in respect to the Credit Agreement of such DVA Obligations, and the Collateral Agent shall have no liability not be required to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as see to the application of such funds by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themsuch agent.
Appears in 2 contracts
Sources: Security Agreement (Advance Auto Parts Inc), Security Agreement (Advance Auto Parts Inc)
Application of Proceeds. (a) The Administrative Agent shall apply the proceeds received by the Collateral Agent in respect of any sale ofcollection, collection from sale, foreclosure or other realization upon all or the Collateral, including any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or by, and all indemnity and fee obligations (other than contingent indemnification and expense reimbursement obligations for which no claim has been made) owed to, the Administrative Agent in connection with such collection collection, sale, foreclosure or sale other realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment Payment in full Full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Notwithstanding the foregoing, no amounts received from any Excluded Swap Guarantor shall be applied to any Excluded Swap Obligations of such Excluded Swap Guarantor. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Allegion PLC), Guarantee and Collateral Agreement (Allegion PLC)
Application of Proceeds. (a) The proceeds received At such intervals as may be elected by the Collateral Administrative Agent upon its receipt of any payments or Net Cash Proceeds in respect of the Secured Obligations, the Administrative Agent may or, if an Event of Default shall have occurred and be continuing, upon its receipt of any payments or Net Cash Proceeds in respect of the Secured Obligations, the Administrative Agent shall apply all or any part of Net Cash Proceeds from the sale of, collection from or other realization upon upon, all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the in payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations as set forth below (subject to the amounts terms of the Credit Agreement). Any part of such funds which the Administrative Agent elects not so applied to be distributed among apply and deems not required as collateral security for the Secured Parties pro rata Obligations shall be paid over from time to time by the Administrative Agent to the applicable Grantor or to whomsoever may be lawfully entitled to receive the same. Any balance of such Net Cash Proceeds remaining after the Secured Obligations shall have been Paid in accordance with Full shall be paid over to the amounts applicable Grantor or to whomsoever may be lawfully entitled to receive the same. In the absence of a specific determination by the Administrative Agent, and at all times during the continuation of an Event of Default, the Net Cash Proceeds from the sale of, or other realization upon, all or any part of the Collateral in payment of the Secured Obligations owed to them on shall be applied in the date of any such distributionfollowing order: FIRST, TO THE PAYMENT OF ALL FEES, REASONABLE COSTS, REASONABLE EXPENSES AND INDEMNITIES OF THE ADMINISTRATIVE AGENT (IN ITS CAPACITY AS SUCH), INCLUDING ATTORNEY COSTS, AND ANY OTHER SECURED OBLIGATIONS THEN DUE AND PAYABLE TO THE ADMINISTRATIVE AGENT IN RESPECT OF SUMS ADVANCED BY THE ADMINISTRATIVE AGENT TO PRESERVE THE COLLATERAL OR TO PRESERVE ITS SECURITY INTEREST IN THE COLLATERAL, UNTIL PAID IN FULL; SECOND, TO THE PAYMENT OF ALL FEES, REASONABLE COSTS, REASONABLE EXPENSES AND INDEMNITIES OF THE LENDERS, PRO-RATA, UNTIL PAID IN FULL; THIRD, to the applicable PledgorsTO THE PAYMENT OF ALL OF THE SECURED OBLIGATIONS CONSISTING OF ACCRUED AND UNPAID INTEREST THEN DUE AND PAYABLE TO THE LENDERS, their successors or assignsPRO-RATA, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceedsUNTIL PAID IN FULL; FOURTH, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding)TO THE PAYMENT OF ALL SECURED OBLIGATIONS CONSISTING OF PRINCIPAL THEN DUE AND PAYABLE TO THE LENDERS, the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes TrusteePRO-RATA, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise)UNTIL PAID IN FULL; FIFTH, then the Collateral AgentTO THE PAYMENT OF THE ADMINISTRATIVE AGENT AN AMOUNT EQUAL TO ALL SECURED OBLIGATIONS IN RESPECT OF ALL OUTSTANDING LETTERS OF CREDIT, after receipt of such moneys pending the application thereofIF ANY, shall at the direction of the Existing Senior Notes TrusteeTO BE HELD AS CASH COLLATERAL IN RESPECT OF SUCH OBLIGATIONS; SIXTH, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent orTO THE PAYMENT OF ALL BANK PRODUCTS OBLIGATIONS AND SPECIFIED HEDGING OBLIGATIONS THEN DUE AND PAYABLE TO ANY LENDER OR ITS AFFILIATES, in the absence of such directionPRO-RATA, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02UNTIL PAID IN FULL; SEVENTH, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement ObligationsTO THE PAYMENT OF ALL OTHER SECURED OBLIGATIONS THEN DUE AND PAYABLE TO EACH LENDER, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such informationPRO-RATA, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.UNTIL PAID IN FULL; AND
Appears in 2 contracts
Sources: Guaranty and Collateral Agreement (Russ Berrie & Co Inc), Guaranty and Collateral Agreement (Russ Berrie & Co Inc)
Application of Proceeds. (a) The proceeds received by If an Event of Default shall have occurred and is continuing, the Collateral Agent in respect shall apply the proceeds of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part Collateral, including any Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, reasonable out-of-pocket costs and expenses incurred by the Collateral Administrative Agent or the Administrative Collateral Agent (in their respective capacities as such hereunder or under any other Loan Document) in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent and/or the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other reasonable out-of-pocket costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of Unfunded Advances/Participations (the Secured amounts so applied to be distributed between or among the Administrative Agent, the Swingline Lender and any Issuing Bank pro rata in accordance with the amounts of Unfunded Advances/Participations owed to them on the date of any such distribution); THIRD, to the payment in full of all other Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRDFOURTH, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Community Health Systems Inc), Guarantee and Collateral Agreement (Community Health Systems Inc)
Application of Proceeds. (a) The proceeds received by Subject to Section 6.01, the Collateral Agent in respect shall apply the proceeds of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral, as well as any Collateral pursuant to the exercise by the Collateral Agent consisting of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and reasonable expenses incurred by the Collateral Administrative Agent or the Administrative Collateral Agent (in its capacity as such hereunder or under any other Loan Document) in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Revolving Credit Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Revolving Credit Obligations and the Reimbursement Obligations in accordance with Section 5.04 of the Intercreditor Agreement (the amounts so applied to be distributed among the Secured Parties secured parties pro rata in accordance with the amounts of the Secured Revolving Credit Obligations and/or Reimbursement Obligations owed to them on the date of any such distribution); ) THIRD, to the applicable Pledgorspayment in full of the Indenture Obligations outstanding; and FOURTH, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Security Agreement (Memc Electronic Materials Inc), Revolving Credit Agreement (Memc Electronic Materials Inc)
Application of Proceeds. (a) The proceeds Prior to the Discharge of Revolving Obligations, whether or not any Insolvency Proceeding has been commenced by or against any Grantor, any Revolving Priority Collateral or Proceeds thereof received by the Collateral Agent in connection with any Exercise of Secured Creditor Remedies (including as a result of any collection, sale, foreclosure or other realization or distribution of or in respect of any sale ofRevolving Priority Collateral (whether or not expressly characterized as such) or in any Insolvency Proceeding) shall be delivered to the Revolving Collateral Agent, collection from or other realization upon all or any part for the benefit of the Pledged Collateral pursuant to the exercise Revolving Claimholders, and shall be applied or further distributed by the Revolving Collateral Agent to or on account of its remedies shall be appliedthe Revolving Obligations in such order, together with any other sums then held by the Collateral Agent pursuant to this Agreementif any, as follows: FIRST, to is specified in the payment of all fees, costs and expenses incurred by the relevant Revolving Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, Documents or as a court of competent jurisdiction may otherwise direct. The Upon the occurrence of the Discharge of Revolving Obligations, the Revolving Collateral Agent shall have absolute discretion as deliver to the time Term Collateral Agent, for the benefit of application the Term Claimholders, any Revolving Priority Collateral and Proceeds of Revolving Priority Collateral received or delivered to it pursuant to the preceding sentence, in the same form as received, with any such proceedsnecessary endorsements, moneys or balances in accordance with this Agreement. Upon any sale of Collateral to be applied by the Term Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser Term Obligations in such order as is specified in the Term Collateral Documents or purchasers as a court of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereofcompetent jurisdiction may otherwise direct.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above Prior to the Existing Senior Notes TrusteeDischarge of Term Obligations, and if the Existing Senior Notes Trustee shall notify the whether or not any Insolvency Proceeding has been commenced by or against any Grantor, any Term Priority Collateral Agent or Proceeds thereof received in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee connection with any Exercise of such moneys Secured Creditor Remedies (including as a result of any collection, sale, foreclosure or other realization or distribution of or in respect of any Term Priority Collateral (whether because or not expressly characterized as such) or in any Insolvency Proceeding) shall be delivered to the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Term Collateral Agent, after receipt of such moneys pending for the application thereof, shall at the direction benefit of the Existing Senior Notes TrusteeTerm Claimholders, invest such amounts in Eligible Securities maturing within 90 days after they are acquired and shall be applied or further distributed by the Term Collateral Agent orto or on account of the Term Obligations in such order, if any, as is specified in the relevant Term Collateral Documents or as a court of competent jurisdiction may otherwise direct. Upon the occurrence of Discharge of Term Obligations, the Term Collateral Agent shall deliver to the Revolving Collateral Agent, for the benefit of the Revolving Claimholders, any Term Priority Collateral and Proceeds of Term Priority Collateral received or delivered to it pursuant to the preceding sentence, in the absence of such directionsame form as received, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof with any necessary endorsements, to be applied by the Revolving Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Revolving Obligations in such order as is specified in the Revolving Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment Documents or any liquidation thereof prior to maturityas a court of competent jurisdiction may otherwise direct.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts If any Exercise of unpaid principal and interest and other amounts outstanding Secured Creditor Remedies with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as Collateral produces non-cash proceeds, then such non-cash proceeds shall, subject to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement ObligationsSection 4.2, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made be held by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree that conducted such Exercise of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as Secured Creditor Remedies and/or sold for cash prior to the application by of the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themproceeds thereof as additional Collateral and, at such time as such non-cash proceeds are monetized, shall be applied as set forth above.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (REV Group, Inc.), Term Loan and Guaranty Agreement (REV Group, Inc.)
Application of Proceeds. (a) The Subject to the Intercreditor Agreement, the Agent shall apply the proceeds received by the Collateral Agent in respect of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part Collateral, as well as any Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, reasonable costs and expenses incurred by the Collateral Agent (in its capacity as such hereunder or the Administrative Agent under any other Term Loan Security Document) in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Term Loan Security Document or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Term Loan Security Document on behalf of any Pledgor Grantor and any other reasonable costs or expenses incurred by the Agent in connection with the exercise of any right or remedy hereunder or under any Mortgageother Term Loan Security Document, if reimbursable pursuant to a Term Loan Security Document; SECOND, to the payment in full of the Secured Term Loan Obligations (and the amounts so applied to be distributed among the Secured Parties pro rata Existing Notes Obligations, ratably in accordance with the respective amounts of the Secured Obligations owed to them thereof on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Except as otherwise provided herein, the Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Neiman Marcus Group Inc), Pledge and Security Agreement (Neiman Marcus, Inc.)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply the proceeds of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part Collateral, including any Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Administrative Agent or the Administrative Collateral Agent in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent and/or the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . The Grantors shall remain liable for any time deficiency if the proceeds of any moneys collected sale or received by disposition of the Collateral Agent pursuant are insufficient to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trusteepay all Secured Obligations, including any attorneys’ fees and if the Existing Senior Notes Trustee shall notify the other expenses incurred by Collateral Agent in writing that no provision is made under or any Lender to collect such deficiency. Notwithstanding the Existing Senior Notes Indenture for foregoing, the application by the Existing Senior Notes Trustee proceeds of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee any collection, sale, foreclosure or realization upon any Collateral of such moneys pending the application thereof or otherwise)any Grantor, then the Collateral Agentincluding any collateral consisting of cash, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability applied to any Excluded Swap Obligation of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence Grantor and shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant instead be applied to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themother secured obligations.
Appears in 2 contracts
Sources: Credit Agreement (Cactus, Inc.), Credit Agreement (Cactus, Inc.)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply the proceeds of any collection or sale ofof Collateral, collection from or other realization which for such purposes shall include any assets of any Loan Party upon all or any part of the Pledged Collateral which a Lien is granted pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Security Document to secure any Secured Obligations, hereunder or under any other Security Document, including any Collateral Agent pursuant to this Agreementconsisting of cash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Administrative Agent or the Administrative Collateral Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent or the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, subject to the provisions of Sections 4.02(b), (c) and (d), to the payment in full of the Secured Obligations other than the Secured Swap Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the such Secured Obligations owed to them on the date of any such distribution); THIRD, subject to the applicable Pledgorsprovisions of Sections 4.02(b), (c) and (d), to the payment in full of the Secured Swap Obligations (the amounts so applied to be distributed among the Secured Swap Parties pro rata in accordance with the amounts of such Secured Swap Obligations owed to them on the date of any such distribution); and FOURTH, subject to any Intercreditor Agreement in effect at the time, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral Collateral, which for such purposes shall include any assets of any Loan Party upon which a Lien is granted pursuant to any other Security Document to secure any Secured Obligations, by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral Collateral, which for such purposes shall include any assets of any Loan Party upon which a Lien is granted pursuant to any other Security Document to secure any Secured Obligations, so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at Notwithstanding any time provision of this Agreement or any moneys collected other Security Document to the contrary, if and to the extent that, on any distribution date, any proceeds of any collection or received by the Collateral Agent sale of Collateral, which for such purposes shall include any assets of any Loan Party upon which a Lien is granted pursuant to this Agreement are distributable any other Security Document to secure any Secured Obligations, hereunder or under any other Security Document constitute proceeds of Restricted Property, then such proceeds, when distributed pursuant to paragraph clause Second or Third of Section 4.02(a), shall be applied (ai) first, to the payment in full of the Secured Obligations that are Unrestricted Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of such Secured Obligations owed to them on the date of any such distribution), and (ii) second, to the payment in full of the other Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance the amounts of such Secured Obligations owed to them on the date of any such distribution); provided that the aggregate amount of proceeds of Restricted Property distributed pursuant to clause (ii) above shall not exceed the Maximum Distribution Amount, and, subject to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent any Intercreditor Agreement in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall effect at the direction of the Existing Senior Notes Trusteetime, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent orany excess shall, in the absence of such directionwhen distributed, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application be distributed pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturityclause Fourth of Section 4.02(a).
(c) The Collateral Agent shall make all payments and distributions under Section 4.02(a): (i) on account of Revolving Loan Document Obligations to the Administrative Agent, pursuant to directions of the Administrative Agent, for redistribution to the holders of the applicable Revolving Loan Document Obligations; and (ii) on account of Term Loan Document Obligations to the Trustee, pursuant to directions of the Trustee, subject to the terms of the Indenture, for redistribution to the holders of the applicable Term Loan Document Obligations.
(d) In making the determination determinations and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Administrative Agent, the Trustee or any holder of Secured Obligations as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations Secured Obligations, and information supplied by the Administrative Agent Parent or the Borrower as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement ObligationsMaximum Distribution Amount, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent (i) any Pledgor Loan Party from contesting any amounts claimed by any Secured Party in any information so suppliedsupplied or (ii) any Secured Party from contesting any amount so supplied by the Parent or the Borrower. In addition, for purposes of making the allocations required by Section 4.02(a) with respect to any amount that is denominated in any currency other than Dollars, the Collateral Agent shall, on or prior to the applicable distribution date, convert such amount into an amount of Dollars based upon the relevant Spot Exchange Rate as of a recent date specified by the Collateral Agent in its reasonable discretion. All distributions made by the Collateral Agent pursuant to this Section 10.1 4.02(a) shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themit for distribution to any Secured Parties.
Appears in 2 contracts
Sources: Collateral Agreement (American Axle & Manufacturing Holdings Inc), Collateral Agreement (American Axle & Manufacturing Holdings Inc)
Application of Proceeds. (a) The All proceeds received collected by the Collateral Administrative Agent in respect of upon any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part of the Pledged Collateral (including any distribution pursuant to the exercise by the a plan of reorganization), including any Collateral Agent consisting of its remedies cash, shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, applied as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent (in its capacity as such hereunder or under any other Loan Document) in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured all Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable PledgorsLoan Parties, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. In addition, in the event that the Administrative Agent receives any non-cash distribution upon any collection, sale, foreclosure or other realization upon any Collateral, such non-cash distribution shall be allocated in the manner described above, with the value of such non-cash distribution being reasonably determined by the Administrative Agent; provided that the Administrative Agent shall apply any cash distribution in accordance with this Section 7.2 prior to application of any such non-cash distribution. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Credit Agreement (FTAI Aviation Ltd.), Credit Agreement (Fortress Transportation & Infrastructure Investors LLC)
Application of Proceeds. (a) The To the fullest extent permitted by law, the proceeds received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part under this Mortgage following the occurrence and continuance of the Pledged Collateral pursuant to the exercise by the Collateral Agent an Event of its remedies Default shall be applied, together with any other sums then held by to the Collateral Agent pursuant to this Agreement, as follows: FIRSTextent funds are so available, to the following items in such order as Mortgagee in its discretion may determine:
(a) To payment of all the reasonable costs, expenses and fees of taking possession of the Mortgaged Property, and of holding, operating, maintaining, using, leasing, repairing, improving, marketing and selling the same and of otherwise enforcing Mortgagee’s rights and remedies hereunder and under the other Loan Documents, including, but not limited to trustees’ fees, costs advertising costs, postage, receivers’ fees, court costs, attorneys’, accountants’, appraisers’, managers’ and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligationsother professional fees, including all court costs title charges and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereoftransfer taxes.
(b) If at any time any moneys collected or received To payment of all sums expended by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made Mortgagee under the Existing Senior Notes Indenture for terms of any of the application by the Existing Senior Notes Trustee of Loan Documents and not yet repaid, together with interest on such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall sums at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturityDefault Interest Rate.
(c) In making To payment of the determination Debt and allocations required all other obligations secured by this Section 4.02Mortgage, including, without limitation, interest at the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as Default Interest Rate and, to the amounts extent permitted by applicable law, any prepayment fee, charge or premium required to be paid under the Note in order to prepay principal, subject to applicable law, in any order that Mortgagee chooses in its sole discretion.
(d) The remainder, if any, of unpaid principal and interest and other amounts outstanding with respect such funds shall be disbursed to Mortgagor or to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent person or the Existing Senior Notes Trustee of any amounts distributed to thempersons legally entitled thereto.
Appears in 2 contracts
Sources: Mortgage and Security Agreement (Apple Hospitality Two Inc), Open End Mortgage and Security Agreement (Apple Hospitality Two Inc)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall, subject to the Intercreditor Agreements, promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, reasonable costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Obligations (excluding Obligations with respect to Secured Hedge Agreements and Secured Cash Management Agreements that are not Designated Secured Hedge Agreements or Designated Secured Cash Management Agreements) secured by such Collateral (the amounts so applied to be distributed among the Secured Parties in accordance with the order of priority set forth in Section 2.19(b) of the Credit Agreement based on respective amounts of such Obligations owed to them on the date of any such distribution); THIRD, to the payment in full of the Obligations in respect of Secured Hedge Agreements and Secured Cash Management Agreements (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured such Obligations owed to them on the date of any such distribution); THIRDand FOURTH, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Notwithstanding the foregoing, no amount received from any Guarantor, or from the proceeds of Collateral pledged by such Guarantor, shall be applied to any Excluded Swap Obligations of such Guarantor. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Collateral Agreement, Collateral Agreement (Momentive Specialty Chemicals Inc.)
Application of Proceeds. (a) The proceeds received by Subject to the terms of the Intercreditor Agreement, the Notes Collateral Agent shall apply the proceeds of any collection or sale of Collateral, including any Collateral consisting of cash, as follows: First, to pay Obligations in respect of any sale of, collection from or other realization upon all or any part incurred and unpaid fees and expenses of the Pledged Notes Collateral pursuant Agent and the Trustee under the Notes Documents; Second, towards payment of amounts then due and owing and remaining unpaid in respect of the Obligations, pro rata among the Secured Parties according to the exercise by amounts of the Collateral Agent Obligations then due and owing and remaining unpaid to the Secured Parties. Third, towards payment of its remedies shall be appliedany remaining Obligations, together with any other sums pro rata among the Secured Parties according to the amounts of the Obligations then held by the Collateral Agent pursuant to this AgreementSecured Parties; and Last, as follows: FIRST, any balance remaining after the Obligations shall have been paid in full shall be paid over to the payment of all fees, costs and expenses incurred by Issuer or to whomsoever may be lawfully entitled to receive the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise directsame. The Notes Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Notes Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Notes Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Notes Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination determinations and allocations required by this Section 4.02, the Notes Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Notes Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor Grantor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Notes Collateral Agent pursuant to this Section 10.1 4.02 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Notes Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themit.
Appears in 2 contracts
Sources: Security Agreement (Freescale Semiconductor Holdings I, Ltd.), Security Agreement (Freescale Semiconductor Inc)
Application of Proceeds. Subject to the ABL Intercreditor Agreement and the First Lien/First Lien Intercreditor Agreement (a) The proceeds received by if entered into), upon the occurrence and during the continuance of an Event of Default, the Collateral Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to realized through the exercise by the Collateral Agent of its remedies shall be appliedhereunder, together as well as any Collateral consisting of cash at any time when remedies are being exercised hereunder, in accordance with any other sums then held by Section 2.01 of the Collateral Agent pursuant to this ABL Intercreditor Agreement or Section 4.2 of the First Lien/Second Lien Intercreditor Agreement, as follows: FIRSTapplicable, to the payment of all feesor, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this after a First Lien/First Lien Intercreditor Agreement or any of the Secured Obligationshas been entered into, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts Section 2.01 of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise directFirst Lien/First Lien Intercreditor Agreement. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Collateral Agreement (First Lien) (DS Services of America, Inc.), Collateral Agreement (First Lien) (DS Services of America, Inc.)
Application of Proceeds. (a) The proceeds received by Upon the exercise of remedies as set forth in Article 6 of the Indenture and subject to the Intercreditor Agreement, the Collateral Agent in respect shall apply the proceeds of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured ObligationsCollateral, including all court costs any Collateral consisting of cash, in the order provided for in the Indenture.
(b) Subject to the Intercreditor Agreement and the fees and expenses of its agents and legal counselIndenture, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys monies or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination determinations and allocations required by this Section 4.02, the Collateral Agent may rely conclusively rely upon information supplied to or by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Collateral Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Secured Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor Grantor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 4.02 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Collateral Agent or the Existing Senior Notes Trustee of any amounts distributed to themit.
Appears in 2 contracts
Sources: Pledge and Security Agreement (CF Industries Holdings, Inc.), Pledge and Security Agreement (CF Industries Holdings, Inc.)
Application of Proceeds. (a) The proceeds received by Subject to any Permitted Intercreditor Agreement then in effect, the Collateral Agent in respect shall apply the proceeds of any collection or sale ofof Collateral, collection from or other realization upon all or including any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Credit Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counselcounsel (to the extent required to be reimbursed pursuant to the terms of the Credit Documents), the repayment of all advances made by the Collateral Agent or the Administrative Agent hereunder or under any Mortgage other Credit Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Credit Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances proceeds in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . It is understood and agreed that the Grantors shall remain jointly and severally liable to the extent of any time deficiency between the amount of the proceeds of the Collateral and the aggregate amount of the Secured Obligations, including any moneys collected or received attorneys’ fees and other expenses incurred by the Collateral Agent pursuant or any other Secured Party to this Agreement are distributable pursuant to paragraph collect such deficiencies (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application extent required to be reimbursed pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts terms of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest errorDocuments), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Pledge and Security Agreement (Entegris Inc), Pledge and Security Agreement (Entegris Inc)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect of any sale of, collection from or other realization disposition of the Collateral shall be applied by HCA, first upon all expenses authorized by this Agreement, the Collateral Documents or by law, including reasonable attorney’s fees incurred by HCA; the balance of the proceeds of such sale or other disposition shall be applied to the payment of the Indebtedness, first to interest and Service Fees, then to principal, then to other Indebtedness, and the surplus, if any, shall be paid over to the Borrower or to such other Person or Persons as may be entitled thereto under applicable law. The Borrower and Guarantor shall remain liable for any deficiency, which the Borrower or Guarantor shall pay to HCA immediately upon demand. Nothing herein contained shall be construed to make HCA an agent or Trustee of Borrower or Guarantor for any purpose whatsoever, and HCA shall not be responsible or liable for any shortage, discrepancy, damage, loss or destruction or any part of the Pledged Collateral pursuant wherever the same may be located and regardless of the cause thereof (except to the exercise extent it is determined by final judicial decision that HCA’s act or omission constituted gross negligence or willful misconduct). HCA shall not, under any circumstances or in any event whatsoever, have any liability for any error or omission or delay of any kind occurring in the Collateral Agent of its remedies shall be appliedsettlement, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the collection or payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured ObligationsAccounts, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt liquidation of the Collateral Agent or any instrument received in payment thereof or for any damage resulting therefrom (except to the extent it is determined by a final judicial decision that HCA’s error, omission or delay constituted gross negligence or willful misconduct). HCA does not, by anything herein or in any assignment or otherwise, assume any of the officer making the sale shall be a sufficient discharge Borrower’s or Guarantor’s obligations under any contract or agreement assigned to the purchaser or purchasers of the Collateral so sold HCA, and such purchaser or purchasers HCA shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable responsible in any way for the misapplication performance by the Borrower or Guarantor of any kind of the terms and conditions thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Loan Agreement (Boxlight Corp), Loan Agreement (Boxlight Corp)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply the proceeds of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part Collateral, including any Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, reasonable costs and expenses incurred by the Collateral Administrative Agent or the Administrative Collateral Agent (in their respective capacities as such hereunder or under any other Loan Document) in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent and/or the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other reasonable out of pocket costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of Unfunded Advances/Participations (the Secured amounts so applied to be distributed between or among the Administrative Agent, Swingline Lender and any Issuing Bank pro rata in accordance with the amounts of Unfunded Advances/Participations owed to them on the date of any such distribution); THIRD, to the payment in full of all other Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRDand FOURTH, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Terex Corp), Guarantee and Collateral Agreement (Terex Corp)
Application of Proceeds. (a) The proceeds received Subject to the terms of any applicable intercreditor agreement contemplated by the Credit Agreement, the Collateral Agent in respect shall apply the proceeds of any collection or sale ofof Collateral, collection from or other realization upon all or including any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, reasonable and documented or invoiced out-of-pocket costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all reasonable and documented or invoiced out-of-pocket court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to any agent of any junior secured debt, in accordance with any applicable intercreditor agreement; and FOURTH, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such informationinformation supplied to it as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Secured Obligations. The Grantors shall remain liable for any deficiency if the proceeds of any sale or disposition of the Collateral are insufficient to pay all Secured Obligations, provided that nothing in this sentence shall prevent including any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made reasonable and documented or invoiced out-of-pocket attorneys’ fees and other expenses incurred by the Collateral Agent pursuant or any other Secured Party to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themcollect such deficiency.
Appears in 2 contracts
Sources: Collateral Agreement (Graftech International LTD), Collateral Agreement (Graftech International LTD)
Application of Proceeds. (a) The proceeds received by Subject to the Collateral terms of the First Lien Intercreditor Agreement, the Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale ofof Collateral, collection from or other realization upon all or as well as any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, reasonable costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document and all fees owed to the Agent and the Administrative Agent in their capacity as such pursuant to the Loan Documents; SECOND, if there exists any Defaulting Lender, to the L/C Issuer, in the amount of the L/C Issuer’s Fronting Exposure; THIRD, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured Obligations owed to them on the date of any such distribution); THIRDand FOURTH, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. If, despite the provisions of this Agreement, any Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Secured Obligations to which it is then entitled in accordance with this Agreement, such Secured Party shall hold such payment or other recovery in trust for the benefit of all Secured Parties hereunder for distribution in accordance with this Section 4.02. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral purchase money by the Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
. Notwithstanding the foregoing, (a) amounts received from the Borrower or any Guarantor that is not a Qualified Eligible Contract Participant Guarantor shall not be applied to the Secured Obligations that are Excluded Swap Obligations (it being understood, that in the event that any amount is applied to Secured Obligations other than Excluded Swap Obligations as a result of this clause (a), the Agent shall make such adjustments as it determines are appropriate to distributions pursuant to clause Second above from amounts received from Qualified Eligible Contract Participant Guarantors to ensure, as nearly as possible, that the proportional aggregate recoveries with respect to Secured Obligations described in clause Third above by the holders of any Excluded Swap Obligations are the same as the proportional aggregate recoveries with respect to other Secured Obligations pursuant to clause Third above) and (b) If at any time any moneys collected or Secured Obligations arising under Cash Management Agreements shall be excluded from the application described above if the Agent has not received written notice thereof, together with such supporting documentation as the Agent may request, from the Cash Management Bank. Each Cash Management Bank not a party to this Agreement that has given the notice contemplated by the Collateral preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee terms of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee Article VIII of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, for itself and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire its Affiliates as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themif a “Lender” party thereto.
Appears in 2 contracts
Sources: Collateral Agreement, Collateral Agreement (EVERTEC, Inc.)
Application of Proceeds. (a) The proceeds received by Subject to the Collateral provisions of the First Lien Intercreditor Agreement and the First and a Half Lien Intercreditor Agreement, the Administrative Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured ObligationsLoan Obligations secured by such Collateral, including without limitation all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor and Grantor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document, and all other fees, indemnities and other amounts owing or reimbursable to the Administrative Agent under any Loan Document in its capacity as such; SECOND, to the payment in full of the Secured Loan Obligations secured by such Collateral (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured such Loan Obligations owed to them on the date of any such distribution), subject to Section 7.18; and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent Administrative Agent, subject to the provisions of the First Lien Intercreditor Agreement and the First and a Half Lien Intercreditor Agreement, shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral purchase money by the Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Term Loan Agreement (Realogy Group LLC), Guarantee and Collateral Agreement (Realogy Group LLC)
Application of Proceeds. So long as the Discharge of First-Lien Obligations has not occurred, any Collateral or proceeds thereof received by any Secured Creditor pursuant to the enforcement of any Collateral Document or the exercise of any rights or remedies (aincluding setoff) The with respect to all or any portion of the Collateral, whether available under any Collateral Document, pursuant to applicable law or otherwise, together with all other proceeds received by any Secured Party (including all funds received in respect of post-petition interest or fees and expenses) as a result of any such enforcement or the exercise of any such rights or remedies or from the collection, disposition or other realization on the Collateral Agent or as a result of any distribution of or in respect of any sale ofCollateral (whether or not expressly characterized as such) upon or in any Insolvency or Liquidation Proceeding with respect to any Grantor (including, collection from without limitation, any such distribution which would otherwise, but for the terms hereof, be payable or other realization upon all or any part deliverable in respect of the Pledged Second-Lien Obligations), or the application of any Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, (or proceeds thereof) to the payment thereof or any distribution of all feesCollateral (or proceeds thereof) upon the liquidation or dissolution of any Grantor, costs shall be paid over to the First-Lien Agent, for the benefit of the First-Lien Secured Parties, and expenses incurred applied by the First-Lien Agent to the First-Lien Obligations (including, without limitation, for purposes of cash collateralization of Letters of Credit and Secured Rate Contracts) in such order as specified in the relevant First-Lien Collateral Agent or Document. Upon the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any Discharge of the Secured First-Lien Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral First-Lien Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, shall deliver to the payment Second-Lien Agent any proceeds of Collateral held by it in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance same form as received, with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, necessary endorsements or as a court of competent jurisdiction may otherwise direct. The Collateral , to be applied by the Second-Lien Agent shall have absolute discretion as to the time of application of any Second-Lien Obligations in such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, order as specified in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturitySecond-Lien Loan Documents.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: First Lien Credit Agreement (GSE Holding, Inc.), Intercreditor Agreement (GSE Holding, Inc.)
Application of Proceeds. (a) The proceeds received by Subject to the terms of the Intercreditor Agreement, the Notes Collateral Agent shall apply the proceeds of any collection or sale of Collateral, including any Collateral consisting of cash, as follows: First, to pay Obligations in respect of any sale of, collection from or other realization upon all or any part incurred and unpaid fees and expenses of the Pledged Notes Collateral pursuant Agent and the Trustee under the Notes Documents; Second, towards payment of amounts then due and owing and remaining unpaid in respect of the Obligations, pro rata among the Secured Parties according to the exercise by amounts of the Collateral Agent Obligations then due and owing and remaining unpaid to the Secured Parties. Third, towards payment of its remedies shall be appliedany remaining Obligations, together with any other sums pro rata among the Secured Parties according to the amounts of the Obligations then held by the Collateral Agent pursuant to this AgreementSecured Parties; and Last, as follows: FIRST, any balance remaining after the Obligations shall have been paid in full shall be paid over to the payment of all fees, costs and expenses incurred by Issuer or to whomsoever may be lawfully entitled to receive the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise directsame. The Notes Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Notes Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Notes Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Notes Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination determinations and allocations required by this Section 4.023.02, the Notes Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Notes Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor Grantor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Notes Collateral Agent pursuant to this Section 10.1 3.02 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Notes Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themit.
Appears in 2 contracts
Sources: Intellectual Property Security Agreement (Freescale Semiconductor, Ltd.), Intellectual Property Security Agreement (Freescale Semiconductor, Ltd.)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply the proceeds of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral, as well as any Collateral pursuant to the exercise by the Collateral Agent consisting of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of any Revolver Obligations outstanding, to the extent the Revolving Loan Documentation is in force; SECOND, to the payment of all fees, costs and expenses incurred by the Trustee or the Collateral Agent (in its capacity as such hereunder or the Administrative Agent under any other Transaction Document) in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Transaction Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Transaction Document; SECONDTHIRD, to the payment in full of the Secured Indenture Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Indenture Obligations owed to them on the date of any such distribution); THIRDand FOURTH, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Security Agreement (Memc Electronic Materials Inc), Indenture (Memc Electronic Materials Inc)
Application of Proceeds. (a) The Agent shall apply the proceeds received by the Collateral Agent in respect of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part Collateral, including any Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, reasonable documented out-of-pocket costs and expenses incurred by the Collateral Agent (in its capacity as such hereunder or the Administrative Agent under any other Loan Document) in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the reasonable documented out-of-pocket fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other reasonable documented out-of-pocket costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion (as between the Secured Parties and the Grantors) as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Loan Modification Agreement (TransDigm Group INC), Credit Agreement (TransDigm Group INC)
Application of Proceeds. (a) The proceeds So long as the Discharge of ABL Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, all ABL Priority Collateral or Proceeds thereof received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the sale or other disposition of, or collection on, such ABL Priority Collateral as a result of the exercise of remedies or other Enforcement or Liquidation Sale by either Agent or any right ABL Claimholders or remedy hereunder or under any Mortgage; SECONDNote Claimholders, shall be delivered to the payment in full ABL Agent and shall be applied or further distributed by the ABL Agent to or on account of the Secured ABL Obligations (in such order, if any, as specified in the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, relevant ABL Loan Documents or as a court of competent jurisdiction may otherwise direct. The Collateral Upon the Discharge of ABL Obligations, the ABL Agent shall have absolute discretion as deliver to the time of application of Notes Agent any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale Collateral and Proceeds of Collateral received or delivered to it pursuant to the preceding sentence, in the same form as received, with any necessary endorsements, to be applied by the Collateral Notes Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser Note Obligations in such order as specified in the Note Security Documents or purchasers as a court of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereofcompetent jurisdiction may otherwise direct.
(b) If at So long as the Discharge of Note Obligations has not occurred, whether or not any time Insolvency or Liquidation Proceeding has been commenced by or against any moneys collected Grantor, all Notes Priority Collateral or Proceeds thereof received in connection with the sale or other disposition of, or collection on, such Notes Priority Collateral as a result of the exercise of remedies or other Enforcement by either Agent or any Note Claimholders or ABL Claimholders, shall be delivered to the Notes Agent and shall be applied by the Notes Agent to the Note Obligations in such order as specified in the relevant Note Documents or as a court of competent jurisdiction may otherwise direct. Upon the Discharge of Note Obligations, the Notes Agent shall deliver to the ABL Agent any Collateral Agent and Proceeds of Collateral received or delivered to it pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent orpreceding sentence, in the absence of such directionsame form as received, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof with any necessary endorsements to be applied by the Collateral ABL Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution ABL Obligations in funds resulting from any such investment order as specified in the ABL Security Documents or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any a court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themjurisdiction may otherwise direct.
Appears in 2 contracts
Sources: Credit Agreement (Armstrong Coal Company, Inc.), Intercreditor Agreement (Armstrong Energy, Inc.)
Application of Proceeds. (a) The proceeds received by Subject to the provisions of the Intercreditor Agreement, the Collateral Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or and the Administrative Agent Trustee in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Note Document or any of the Secured ObligationsObligations secured by such Collateral, including without limitation all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the Trustee hereunder or under any Mortgage other Note Document on behalf of any Pledgor and Grantor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Note Document, and all other fees, indemnities and other amounts owing or reimbursable to the Collateral Agent under any Note Document in its capacity as such; SECOND, to the payment in full of the other Secured Obligations secured by such Collateral (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the such Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall shall, subject to the provisions of the Intercreditor Agreement, have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Collateral Agreement (Anywhere Real Estate Group LLC), Collateral Agreement (Realogy Holdings Corp.)
Application of Proceeds. (a) The proceeds So long as the Discharge of ABL Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, all ABL Priority Collateral or Proceeds thereof received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the sale or other disposition of, or collection on, such ABL Priority Collateral as a result of the exercise of remedies or other Enforcement or Going Out of Business Sale by either Agent or any right ABL Claimholders or remedy hereunder or under any Mortgage; SECONDNote Claimholders, shall be delivered to the payment in full ABL Agent and shall be applied or further distributed by the ABL Agent to or on account of the Secured ABL Obligations (in such order, if any, as specified in the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, relevant ABL Loan Documents or as a court of competent jurisdiction may otherwise direct. The Collateral Upon the Discharge of ABL Obligations, the ABL Agent shall have absolute discretion as deliver to the time of application of Notes Agent any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale Collateral and Proceeds of Collateral received or delivered to it pursuant to the preceding sentence, in the same form as received, with any necessary endorsements, to be applied by the Collateral Notes Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser Note Obligations in such order as specified in the Note Security Documents or purchasers as a court of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereofcompetent jurisdiction may otherwise direct.
(b) If at So long as the Discharge of Note Obligations has not occurred, whether or not any time Insolvency or Liquidation Proceeding has been commenced by or against any moneys collected Grantor, all Notes Priority Collateral or Proceeds thereof received in connection with the sale or other disposition of, or collection on, such Notes Priority Collateral as a result of the exercise of remedies or other Enforcement by either Agent or any Note Claimholders or ABL Claimholders, shall be delivered to the Notes Agent and shall be applied by the Notes Agent to the Note Obligations in such order as specified in the relevant Note Documents or as a court of competent jurisdiction may otherwise direct. Upon the Discharge of Note Obligations, the Notes Agent shall deliver to the ABL Agent any Collateral Agent and Proceeds of Collateral received or delivered to it pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent orpreceding sentence, in the absence of such directionsame form as received, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof with any necessary endorsements to be applied by the Collateral ABL Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution ABL Obligations in funds resulting from any such investment order as specified in the ABL Security Documents or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any a court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themjurisdiction may otherwise direct.
Appears in 2 contracts
Sources: Intercreditor Agreement (Tops PT, LLC), Abl Credit Agreement (AbitibiBowater Inc.)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale ofof Collateral, collection from or other realization upon all or as well as any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Applicable Agent and the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Applicable Agent and the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Obligor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsObligors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Guarantee and Collateral Agreement (Massey Energy Co), Guarantee and Collateral Agreement (Alpha Natural Resources, Inc.)
Application of Proceeds. (a) The proceeds received by Subject to the ABL Intercreditor Agreement, the Collateral Agent in respect shall apply the proceeds of any collection or sale ofof Collateral, collection from or other realization upon all or including any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Credit Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counselcounsel (to the extent required to be reimbursed pursuant to the terms of the Credit Documents), the repayment of all advances made by the Collateral Agent or the Administrative Agent hereunder or under any Mortgage other Credit Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Credit Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . It is understood and agreed that the Grantors shall remain jointly and severally liable to the extent of any time deficiency between the amount of the proceeds of the Collateral and the aggregate amount of the Secured Obligations, including any moneys collected or received attorneys fees and other expenses incurred by the Collateral Agent pursuant or any other Secured Party to this Agreement are distributable pursuant to paragraph collect such deficiencies (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application extent required to be reimbursed pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts terms of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest errorDocuments), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Term Pledge and Security Agreement, Term Pledge and Security Agreement (Entegris Inc)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply the proceeds of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part Collateral, including any Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Administrative Agent or the Administrative Collateral Agent (in their respective capacities as such hereunder or under any other Loan Document) in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent and/or the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of Unfunded Advances/Participations (the Secured amounts so applied to be distributed between or among the Administrative Agent, the Swingline Lender and any Issuing Bank pro rata in accordance with the amounts of Unfunded Advances/Participations owed to them on the date of any such distribution); THIRD, to the payment in full of the Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRDand FOURTH, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Credit Agreement (Ryan's Restaurant Leasing Company, LLC), Guarantee and Collateral Agreement (Ryan's Restaurant Leasing Company, LLC)
Application of Proceeds. (a) The proceeds received of any sale of Collateral pursuant to Section 8(b), as well as any Collateral consisting of cash under Section 8(a), shall be applied by the Collateral Agent in respect of any sale ofas follows: First, collection from or other realization upon all or any part to the payment of the Pledged Collateral pursuant to the exercise by reasonable costs and expenses of the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRSTset forth in Section 8(b); Second, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any amounts of the Foreign Obligations owed to the Secured Obligations, including all court costs and the fees and expenses Parties in respect of its agents and legal counsel, the repayment of all advances Loans made by the Collateral Agent hereunder them and outstanding and amounts owing in respect of any LC Disbursement or Letter of Credit or under any Mortgage on behalf of any Pledgor and any other costs Cash Management Arrangement, Commodity Rate Protection Agreement or expenses incurred Interest/Exchange Rate Protection Agreement with a Lender, pro rata as among the Secured Parties in connection accordance with the exercise amount of any right or remedy hereunder or under any Mortgagesuch Foreign Obligations owed them; SECONDThird, to the payment and discharge in full of the Secured Foreign Obligations (the amounts so applied other than those referred to be distributed above), pro rata as among the Secured Parties pro rata in accordance with the amounts amount of the Secured such Foreign Obligations owed to them on them; and Fourth, after payment in full of all the date of any such distribution); THIRDForeign Obligations, to the applicable PledgorsPledgor, their or the successors or assignsassigns thereof, or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may otherwise direct, any Collateral then remaining. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: Pledge Agreement (Graftech International LTD), Pledge Agreement (Graftech International LTD)
Application of Proceeds. (a) The All proceeds received by the Collateral Agent or the Lenders in respect of the repayment of any sums due hereunder or in connection with a foreclosure sale of, collection from or other realization upon of all or any part portion of the Pledged Collateral pursuant to after the exercise by the Collateral Agent occurrence of its remedies an Event of Default shall be applied, together with first, to the costs of enforcement of the Lenders' rights hereunder and under the other Loan Documents; second, to pay any accrued and unpaid interest (including all interest owing at the Default Rate), the principal amount of the Advances and any unpaid fees payable under this Agreement and the other sums then held by Loan Documents in such order of priority as the Agent, in its sole and absolute discretion shall determine but subject to the rights of the Lenders; and third, if any excess proceeds exist, to the Borrower or any party entitled thereto as a matter of law. If the amount of all proceeds received in liquidation of the Collateral Agent pursuant which shall be applied to payment of the indebtedness due in respect of this Agreement, as follows: FIRSTthe Promissory Notes and the Loan Documents shall be insufficient to pay all such indebtedness or obligations in full, the Borrower acknowledges that it shall remain liable for any deficiency, together with interest thereon and costs of collection thereof (including reasonable counsel fees and legal expenses).
(b) The Agent shall have the right, but not the obligation, to deposit any proceeds in its possession which are available under clause third of Section 6.4(a) above into a court of competent jurisdiction for determination by such court of the payment disposition of all feessuch excess proceeds and upon such deposit, the Agent shall have no further liability with respect to such proceeds. All costs and expenses incurred by of the Collateral Agent or the Administrative Agent in connection with such collection action may be deducted or sale or charged by the Agent against such excess proceeds and shall otherwise in connection with this Agreement or any be reimbursed by the Borrower upon demand. The Agent shall have the right, but not the obligation, to request and rely on the instructions of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred Borrower in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date disposition of any such distribution); THIRDexcess proceeds and, to the applicable Pledgorsupon compliance with such instructions, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding further liability with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themproceeds.
Appears in 2 contracts
Sources: Credit Agreement (Homestead Village Inc), Credit Agreement (Homestead Village Inc)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall, following written instruction from the Applicable First Lien Agent and subject to the Intercreditor Agreements, promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this AgreementCollateral, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement, any other Indenture Document, any Other First Lien Agreement or any of the Secured ObligationsObligations secured by such Collateral, including including, without limitation, all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances (if any) made by the Collateral Agent hereunder or under any Mortgage other Indenture Document or any Other First Lien Agreement on behalf of any Pledgor and Pledgor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or hereunder, under any Mortgageother Indenture Document or any Other First Lien Agreement, and all other fees, indemnities and other amounts owing or reimbursable to the Collateral Agent under any Indenture Document or any Other First Lien Agreement in its capacity as such; SECOND, to the payment in full of the Secured Obligations secured by such Collateral (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured such Obligations owed to them on the date of any such distribution); and THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Notwithstanding the foregoing, no amount received from any guarantor, or from the proceeds of Collateral pledged by such guarantor, shall be applied to any Excluded Swap Obligations of such guarantor. Following written instruction from the Applicable First Lien Agent, the Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 2 contracts
Sources: First Lien Collateral Agreement, First Lien Collateral Agreement (Momentive Performance Materials Inc.)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply the proceeds of any collection or sale ofof Collateral, collection from or other realization which for such purposes shall include any assets of any Loan Party upon all or any part of the Pledged Collateral which a Lien is granted pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Security Document to secure any Secured Obligations, hereunder or under any other Security Document, including any Collateral Agent pursuant to this Agreementconsisting of cash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by any of the Administrative Agents or the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by any of the Administrative Agents or the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, subject to the provisions of Sections 4.02(b), (c) and (d), to the payment in full of the Secured Obligations other than those in respect of Swap Agreements (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the such Secured Obligations owed to them on the date of any such distribution); THIRD, subject to the applicable Pledgorsprovisions of Sections 4.02(b), (c) and (d), to the payment in full of the Secured Obligations in respect of Swap Agreements (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of such Secured Obligations owed to them on the date of any such distribution); and FOURTH, subject to any Intercreditor Agreement in effect at the time, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral Collateral, which for such purposes shall include any assets of any Loan Party upon which a Lien is granted pursuant to any other Security Document to secure any Secured Obligations, by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral Collateral, which for such purposes shall include any assets of any Loan Party upon which a Lien is granted pursuant to any other Security Document to secure any Secured Obligations, so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at Notwithstanding any time provision of this Agreement or any moneys collected other Security Document to the contrary, if and to the extent that, on any distribution date, any proceeds of any collection or received by the Collateral Agent sale of Collateral, which for such purposes shall include any assets of any Loan Party upon which a Lien is granted pursuant to this Agreement are distributable any other Security Document to secure any Secured Obligations, hereunder or under any other Security Document constitute proceeds of Restricted Property, then such proceeds, when distributed pursuant to paragraph clause Second or Third of Section 4.02(a), shall be applied (ai) first, to the payment in full of the Secured Obligations that are Unrestricted Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of such Secured Obligations owed to them on the date of any such distribution), and (ii) second, to the payment in full of the other Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance the amounts of such Secured Obligations owed to them on the date of any such distribution); provided that the aggregate amount of proceeds of Restricted Property distributed pursuant to clause (ii) above shall not exceed the Maximum Distribution Amount, and, subject to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent any Intercreditor Agreement in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall effect at the direction of the Existing Senior Notes Trusteetime, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent orany excess shall, in the absence of such directionwhen distributed, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application be distributed pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturityclause Fourth of Section 4.02(a).
(c) The Collateral Agent shall make all payments and distributions under Section 4.02(a): (i) on account of Revolving Loan Document Obligations to the Revolving Administrative Agent, pursuant to directions of the Revolving Administrative Agent, for redistribution to the holders of the applicable Revolving Loan Document Obligations; and (ii) on account of Term Loan Document Obligations to the Term Loan Administrative Agent, pursuant to directions of the Term Loan Administrative Agent, for redistribution to the holders of the applicable Term Loan Document Obligations.
(d) In making the determination determinations and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee either Administrative Agent or any holder of Secured Obligations as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations Secured Obligations, and information supplied by the Administrative Agent Parent or the Borrower as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement ObligationsMaximum Distribution Amount, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent (i) any Pledgor Loan Party from contesting any amounts claimed by any Secured Party in any information so suppliedsupplied or (ii) any Secured Party from contesting any amount so supplied by the Parent or the Borrower. In addition, for purposes of making the allocations required by Section 4.02(a) with respect to any amount that is denominated in any currency other than Dollars, the Collateral Agent shall, on or prior to the applicable distribution date, convert such amount into an amount of Dollars based upon the relevant Spot Exchange Rate as of a recent date specified by the Collateral Agent in its reasonable discretion. All distributions made by the Collateral Agent pursuant to this Section 10.1 4.02(a) shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the either Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themit for distribution to any Secured Parties.
Appears in 1 contract
Sources: Collateral Agreement (American Axle & Manufacturing Holdings Inc)
Application of Proceeds. (a) The proceeds received by Subject to the Intercreditor Agreement, the Collateral Agent in respect shall apply the proceeds of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part Collateral, including any Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or and the Administrative Agent in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of Unfunded Advances/Participations; THIRD, to the Secured payment in full of all other Obligations (the amounts so applied to be distributed among the Secured Parties pro rata PRO RATA in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRDFOURTH, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent and the Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Sources: First Lien Guarantee and Collateral Agreement (Pacific Energy Resources LTD)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall, subject to the applicable provisions of the Intercreditor Agreement, apply the proceeds of any collection or sale ofof Collateral, collection from including any Collateral consisting of cash, and the amounts paid or other realization upon all or caused to be paid by any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together Guarantor in accordance with any other sums then held by the Collateral Agent pursuant to this AgreementArticle 2, as follows: FIRST, to the payment of all fees, reasonable costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts Section 11.02 of the Secured Obligations owed to them on the date of any such distribution)Credit Agreement; THIRD, unless the Notes Agent shall have notified the Collateral Agent that the Discharge of Notes Obligations has occurred, to the applicable PledgorsNotes Agent; and FOURTH, if the Notes Agent shall have notified the Collateral Agent that the Discharge of Notes Obligations has occurred, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may otherwise directdirect or as otherwise required by the Intercreditor Agreement. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of by the Collateral Agent or of the officer making the proceeds of any sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . It is understood that the Grantors shall remain jointly and severally liable to the extent of any time any moneys collected or received by deficiency between the amount of the proceeds of the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any aggregate amount of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themObligations.
Appears in 1 contract
Application of Proceeds. (a) The Collateral Agent shall apply the proceeds received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be appliedremedies, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection collection, sale or sale realization or otherwise in connection with this Agreement Agreement, any Note Document or any of the Secured Obligations, including without limitation all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Note Document on behalf of any Pledgor and Pledgor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Note Document, and all other fees, indemnities and other amounts owing or reimbursable to the Collateral Agent under any Note Document in its capacity as Collateral Agent or as Trustee; SECOND, to the payment interest due in full respect of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any which such distribution)Pledged Collateral secures; THIRD, to the applicable principal of the Obligations which such Pledged Collateral secures; and FOURTH, to the Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Pledged Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Pledged Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Sources: Pledge and Security Agreement (Ambassadors International Inc)
Application of Proceeds. (a) The Purchaser shall apply the proceeds received by the Collateral Agent in respect of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent consisting of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, cash as follows: FIRST, to the payment of all fees, reasonable costs and expenses incurred by the Collateral Agent or the Administrative Agent Purchaser in connection with such collection or sale or otherwise in connection with this Agreement, the Control Agreement or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other reasonable costs or expenses incurred in 4855-7613-32454864-7968-1754, v.107 connection with the exercise of any right or remedy hereunder or under any Mortgagethe Control Agreement; SECOND, to the payment in full of the Secured Obligations (in the amounts so applied to be distributed among the Secured Parties pro rata order and manner specified in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution)SectionsClauses 6 and 7 hereof; and THIRD, to the applicable PledgorsSellers, their respective successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent Purchaser shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement, but agrees that all such proceeds, moneys and balances shall be applied in a reasonable time. Upon any sale of the Collateral by the Collateral Agent Purchaser (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent Purchaser or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent Purchaser or such officer or be answerable in any way for the misapplication thereof. 4855-7613-32454864-7968-1754, v.107 IN WITNESS whereof the parties have executed this Agreement on the date set out on the first page of this document. For and on behalf of COÖPERATIEVE RABOBANK U.A., NEW YORK BRANCH, Purchaser By: Name: Title: By: Name: Title: 4864-7968-1754, v.7 For and on behalf of WESTROCK CP, LLC, WESTROCK - SOLVAY, LLC, WESTROCK COMPANY OF TEXAS, WESTROCK MILL COMPANY, LLC, WESTROCK CALIFORNIA, LLC, WESTROCK MINNESOTA CORPORATION, WESTROCK - SOUTHERN CONTAINER, LLC, WESTROCK PACKAGING SYSTEMS, LLC, WESTROCK PACKAGING, INC., WESTROCK - GRAPHICS, INC., WESTROCK BOX ON DEMAND, LLC, WESTROCK KRAFT PAPER, LLC, WESTROCK CONSUMER PACKAGING GROUP, LLC, WESTROCK MWV, LLC, WESTROCK USC, INC., WESTROCK PAPER AND PACKAGING, LLC, WESTROCK LONGVIEW, LLC, WESTROCK CHARLESTON KRAFT, LLC, WESTROCK CONTAINER, LLC, WESTROCK, LLC, each as a Seller WESTROCK CONVERTING, LLC, as a Seller, Sellers Agent and Servicer WESTROCK RKT, LLC, as Guarantor By: Name: Title: For and on behalf of WESTROCK COMPANY, Guarantor By: Name: Title:
1. On the Closing Date (i) Sellers agree to pay to Purchaser the upfront fee pursuant to the Fee Letter and any fees due on such date pursuant to the “Closing Fee Letter” dated as of the Closing Date between the Sellers Agent and Coöperatieve Rabobank U.A., New York Branch and (ii) each of WestRock, LLC and Sellers Agent, as applicable, agrees to provide Purchaser with every item listed below in form and substance satisfactory to Purchaser:
A. Opinion of ▇▇▇▇▇ Day and internal counsel to Servicer, as applicable, in each case solely with respect to WestRock, LLC: (i) corporate matters relating to WestRock, LLC, (ii) the due authorization, execution and delivery of the transaction documents by WestRock, LLC, (iii) the legality, validity and enforceability of the transaction documents, (iv) absence of required consents, approvals, etc., (v) absence of conflicts with laws, material agreements or organizational documents and (vi) true sale.
(a) a certificate of the Secretary or an Assistant Secretary of WestRock, LLC, dated the Closing Date, certifying as to (i) the incumbency of the officers of WestRock, LLC executing the Transaction Documents and (ii) the attached copies of WestRock, LLC 'sLLC’s certificate of incorporation or formation and bylaws or operating agreement, and (b) If at any time any moneys collected or received by a certificate of an authorized officer of WestRock, LLC, dated the Collateral Agent pursuant to this Agreement Closing Date, confirming that the representations and warranties of WestRock, LLC contained in the Transaction Documents are distributable pursuant to paragraph true and correct in all material respects (a) above except to the Existing Senior Notes Trusteeextent that any such representation or warranty is qualified by materiality, in which case such representation and if warranty shall be true and correct) as of the Existing Senior Notes Trustee Closing Date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such certificate shall notify the Collateral Agent in writing confirm that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee such representations and warranties are true and correct as of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwiseearlier date), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.;
Appears in 1 contract
Sources: Agreement for the Purchasing and Servicing of Receivables (Smurfit Westrock PLC)
Application of Proceeds. (a) The proceeds received by Subject to the Collateral terms of the Senior Lien Intercreditor Agreement and the Additional Priority Lien Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default, the Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this AgreementCollateral, as followswell as any Collateral consisting of cash, in the order specified below: FIRST, to the payment of all fees, reasonable costs and expenses and indemnification amounts incurred by the Collateral Agent or the Administrative Agent and any Authorized Representative and all fees owed to them in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any Credit Document or any of the Secured Obligations, including all court costs and the fees reasonable fees, disbursements and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the relevant Authorized Representatives hereunder or under any Mortgage other Credit Document on behalf of any Pledgor and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Credit Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon the request of the Agent prior to any distribution under this Section 4.02, each Authorized Representative shall provide to the Agent certificates setting forth the respective amounts referred to in this Section 4.02, that each applicable Secured Party or their Authorized Representative believes it is entitled to receive, and the Agent shall be fully entitled to rely on such certificates. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral purchase money by the Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Sources: Pledge Agreement (EP Energy Corp)
Application of Proceeds. (a) The Administrative Agent shall apply the proceeds received by the Collateral Agent in respect of any collection or sale ofof Collateral, collection from or other realization upon all or including any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (other than the U.S. Term Obligations) (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations (other than the U.S. Term Obligations) owed to them on the date of any such distribution); THIRD, to the applicable Pledgorspayment in full of the U.S. Term Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the U.S. Term Obligations owed to them on the date of any such distribution); and FOURTH, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement and Section 9.24 of the Credit Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Sources: Domestic Security Agreement (Indalex Holdings Finance Inc)
Application of Proceeds. (a) The proceeds So long as the Discharge of ABL Obligations has not occurred, whether or not any Insolvency or Liquidation Proceeding has been commenced by or against any Grantor, all ABL Priority Collateral or Proceeds thereof received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the sale or other disposition of, or collection on, such ABL Priority Collateral as a result of the exercise of remedies or other Enforcement by either Agent or any right ABL Claimholders or remedy hereunder or under any Mortgage; SECONDNote Claimholders, shall be delivered to the payment in full ABL Agent and shall be applied or further distributed by the ABL Agent to or on account of the Secured ABL Obligations (in such order, if any, as specified in the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, relevant ABL Loan Documents or as a court of competent jurisdiction may otherwise direct. The Collateral Upon the Discharge of ABL Obligations, the ABL Agent shall have absolute discretion as deliver to the time of application of Notes Agent any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale Collateral and Proceeds of Collateral received or delivered to it pursuant to the preceding sentence, in the same form as received, with any necessary endorsements, to be applied by the Collateral Notes Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser Note Obligations in such order as specified in the Note Security Documents or purchasers as a court of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereofcompetent jurisdiction may otherwise direct.
(b) If at So long as the Discharge of Note Obligations has not occurred, whether or not any time Insolvency or Liquidation Proceeding has been commenced by or against any moneys collected Grantor, all Note Priority Collateral or Proceeds thereof received in connection with the sale or other disposition of, or collection on, such Note Priority Collateral as a result of the exercise of remedies or other Enforcement by either Agent or any Note Claimholders or ABL Claimholders, shall be delivered to the Notes Agent and shall be applied by the Notes Agent to the Note Obligations in such order as specified in the relevant Note Documents or as a court of competent jurisdiction may otherwise direct. Upon the Discharge of Note Obligations, the Notes Agent shall deliver to the ABL Agent any Collateral Agent and Proceeds of Collateral received or delivered to it pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent orpreceding sentence, in the absence of such directionsame form as received, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof with any necessary endorsements to be applied by the Collateral ABL Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution ABL Obligations in funds resulting from any such investment order as specified in the ABL Security Documents or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any a court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themjurisdiction may otherwise direct.
Appears in 1 contract
Application of Proceeds. (a) The Subject to the terms of the U.S. Collateral Trust Agreement as in effect from time to time, if any U.S. Collateral is sold or otherwise realized upon by the U.S. Collateral Trustee in connection with any foreclosure, collection or other enforcement of Liens granted to the U.S. Collateral Trustee in the U.S. Security Documents, the proceeds received by the U.S. Collateral Agent in respect of any sale ofTrustee from such foreclosure, collection from or other realization upon all or any part of enforcement will be distributed by the Pledged U.S. Collateral pursuant Trustee to the exercise Trustee for application by the Collateral Agent of its remedies shall be applied, together with any other sums then held by Trustee in the Collateral Agent pursuant to this Agreement, as followsfollowing order: FIRST, ratably, to the Trustee and the U.S. Collateral Trustee toward the payment of all feesamounts due to the Trustee and the U.S. Collateral Trustee under Section 7.06 hereof, costs and to the U.S. Collateral Trustee under any U.S. Security Document, including payment of all compensation, expenses incurred and liabilities incurred, and all advances made, by the Trustee and the U.S. Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Trustee or any co-trustee or agent of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the U.S. Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any MortgageTrustee; SECOND, to Holders of U.S. Notes for Obligations in respect of the U.S. Notes that are then due and payable in an amount sufficient to pay in full in cash all outstanding Obligations in respect of such U.S. Notes that are then due and payable (including all interest accrued thereon after the commencement of any Insolvency or Liquidation Proceeding, even if such interest is not enforceable, allowable or allowed as a claim in such proceeding), ratably, without preference or priority of any kind, according to the amounts due and payable on the U.S. Notes for principal, premium, if any, and interest, if any, respectively; and THIRD, any surplus remaining after the payment in full in cash of the Secured Obligations (amounts described in the amounts so applied to preceding clauses will be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, paid to the U.S. Issuer or the applicable PledgorsU.S. Guarantor, their as the case may be, its successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at Subject to the terms of the Canadian Collateral Trust Agreement as in effect from time to time, if any time Canadian Collateral is sold or otherwise realized upon by the Canadian Collateral Trustee in connection with any moneys collected foreclosure, collection or other enforcement of Liens granted to the Canadian Collateral Trustee in the Canadian Security Documents, the proceeds received by the Canadian Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above Trustee from such foreclosure, collection or other enforcement will be distributed by the Canadian Collateral Trustee to the Existing Senior Notes TrusteeTrustee for application in the following order: FIRST, ratably, to the Trustee and the Canadian Collateral Trustee toward the payment of all amounts due to the Trustee and the Canadian Collateral Trustee under Section 7.06 hereof, and if to the Existing Senior Notes Canadian Collateral Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application any Canadian Security Document, including payment of all compensation, expenses and liabilities incurred, and all advances made, by the Existing Senior Trustee and the Canadian Collateral Trustee or any co-trustee or agent of the Canadian Collateral Trustee; SECOND, to Holders of Canadian Notes Trustee for Obligations in respect of the Canadian Notes that are then due and payable in an amount sufficient to pay in full in cash all outstanding Obligations in respect of such moneys Canadian Notes that are then due and payable (whether because including all interest accrued thereon after the Existing Senior Notes Indenture does commencement of any Insolvency or Liquidation Proceeding, even if such interest is not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of enforceable, allowable or allowed as a claim in such moneys pending the application thereof or otherwiseproceeding), then the Collateral Agentratably, after receipt without preference or priority of such moneys pending the application thereofany kind, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as according to the amounts due and payable on the Canadian Notes for principal, premium, if any, and interest, if any, respectively; and THIRD, any surplus remaining after the payment in full in cash of unpaid principal and interest and other the amounts outstanding with respect described in the preceding clauses will be paid to the Existing Senior Notes Obligations and information supplied by Canadian Issuer or the Administrative Agent applicable Canadian Guarantor, as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligationscase may be, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such informationits successors or assigns, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any or as a court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themjurisdiction may direct.
Appears in 1 contract
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall, subject to any applicable Intercreditor Agreement, promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to realized through the exercise by the Collateral Agent of its remedies shall be appliedhereunder, together with as well as any other sums then held by the Collateral Agent pursuant to this Agreementconsisting of cash at any time when remedies are being exercised hereunder, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement any Loan Document or any of the Secured Obligations, secured by such Collateral, including without limitation all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage Loan Document on behalf of any Pledgor and Pledgor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document, and all other fees, indemnities and other amounts owing or reimbursable to the Collateral Agent under any Loan Document in its capacity as such; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be further distributed among to the Secured Parties pro rata in accordance with the amounts order of priority set forth in Section 7.02 of the Secured Obligations owed to them on the date of any such distribution)Credit Agreement; and THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Sources: Collateral Agreement (Cerence Inc.)
Application of Proceeds. (a) The proceeds received by Subject to the Collateral terms of the Priority Lien Intercreditor Agreement, upon the occurrence and during the continuance of an Event of Default, the Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this AgreementCollateral, as followswell as any Collateral consisting of cash, in the order specified below: FIRST, to the payment of all fees, reasonable costs and expenses and indemnification amounts incurred by the Collateral Agent or the Administrative Agent and any Authorized Representative and all fees owed to them in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any Credit Document or any of the Secured Obligations, including all court costs and the fees reasonable fees, disbursements and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the relevant Authorized Representatives hereunder or under any Mortgage other Credit Document on behalf of any Pledgor and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Credit Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon the request of the Agent prior to any distribution under this Section 4.02, each Authorized Representative shall provide to the Agent certificates setting forth the respective amounts referred to in this Section 4.02, that each applicable Secured Party or their Authorized Representative believes it is entitled to receive, and the Agent shall be fully entitled to rely on such certificates. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral purchase money by the Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Application of Proceeds. (a) The Except as expressly provided elsewhere in this Agreement or any other Revolving Credit Document, all proceeds received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, applied as follows: :
(i) FIRST, to the payment of all fees, reasonable and documented out-of-pocket costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such sale, collection or sale realization or otherwise in connection with this Agreement Agreement, the other Security Documents or any of the Secured Obligations, including all court costs and the reasonable and documented fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Security Document on behalf of any Pledgor Grantor and any other reasonable and documented out-of-pocket costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; other Security Document;
(ii) SECOND, to the payment in full of the Secured Parties, an amount equal to all Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed owing to them on the date of any such distribution), and, if such moneys shall be insufficient to pay such amounts in full, then ratably (without priority of any one over any other) to such Secured Parties in proportion to the unpaid amounts thereof; and
(iii) THIRD, any surplus then remaining shall be paid to the applicable Pledgors, Grantors or their successors or assigns, assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. .
(b) Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Application of Proceeds. (aThe Agent shall, subject to the Intercreditor Agreements including Section 1.01(b) The proceeds received by of the Collateral Agent in respect First Lien Intercreditor Agreement, promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to realized through the exercise by the Collateral Agent of its remedies shall be appliedhereunder, together with as well as any other sums then held by the Collateral Agent pursuant to this Agreementconsisting of cash at any time when remedies are being exercised hereunder, as follows: FIRST, to the payment of all fees, fees and reasonable costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any Loan Document or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations secured by such Collateral (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with based on the respective amounts of the such Secured Obligations owed to them on the date of any such distributiondistribution (or in accordance with such other method of distribution as may be set forth in the First Lien Intercreditor Agreement); and THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral purchase money by the Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply the proceeds of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part Collateral, including any Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, reasonable and documented costs and expenses incurred by the Collateral Administrative Agent or the Administrative Collateral Agent (in their respective capacities as such hereunder or under any other Loan Document) in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Administrative Agent and/or the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of Unfunded Advances/Participations (the Secured amounts so applied to be distributed between or among the Administrative Agent, the Swingline Lender and any Issuing Bank pro rata in accordance with the amounts of Unfunded Advances/Participations owed to them on the date of any such distribution); THIRD, to the payment in full of all other Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRDFOURTH, to the applicable PledgorsSecond Lien Collateral Agent, in accordance with the Intercreditor Agreement; and FIFTH, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Sources: First Lien Guarantee and Collateral Agreement (Itc Deltacom Inc)
Application of Proceeds. (a) The Subject to the Intercreditor Agreements, the Second Lien Agent shall apply the proceeds received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured ObligationsCollateral, including all court costs and the fees and expenses any Collateral consisting of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECONDcash as follows:
(i) First, to amounts owing to the payment Second Lien Agent in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata its capacity as such in accordance with the amounts terms of the Security Documents;
(ii) Second, to amounts owing to the Trustee in its capacity as such in accordance with the terms of the Indenture;
(iii) Third, ratably to amounts owing to the holders of Second Lien Secured Obligations owed to them on in accordance with the date terms of any such distribution)the Indenture; THIRDand
(iv) Last, to the applicable Pledgorsrelevant Grantor, as applicable, their successors or assigns, assigns or as a court of competent jurisdiction may otherwise direct. The Collateral Second Lien Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Second Lien Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Second Lien Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Second Lien Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . The Second Lien Agent shall have no liability to any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts Second Lien Secured Parties for actions taken in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon reliance on information supplied by the Existing Senior Notes Trustee to it as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Second Lien Secured Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor Grantor from contesting any amounts claimed by any Second Lien Secured Party in any information so supplied. All distributions made by the Collateral Second Lien Agent pursuant to this Section 10.1 4.02 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply the proceeds of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part Collateral, including any Collateral consisting of cash and any amounts on deposit in the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this AgreementSpecial Trust Account, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent (in its capacity as such hereunder or the Administrative Agent under any other Security Document) in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Security Document or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Security Document on behalf of any either Pledgor and any other reasonable costs or expenses incurred by the Collateral in connection with the exercise of any right or remedy hereunder or under any Mortgageother Security Document; SECOND, to the payment in full of the Secured Credit Agreement Obligations (and the amounts so applied to be distributed among the Secured Parties pro rata Senior Note Obligations, ratably in accordance with the respective amounts of the Secured Obligations owed to them thereof on the date of any such distribution); THIRD, to the applicable payment in full of the Obligations of the Borrowers to TWEAN under Section 5.19 of this Agreement; and FOURTH, to the Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Except as otherwise provided herein, the Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Application of Proceeds. (a) The Subject to the Intercreditor Agreement, the Administrative Agent shall apply the proceeds received by the Collateral Agent in respect of any collection or sale ofof Collateral, collection from or other realization upon all or including any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Loan Document Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document, in each case, that are then due and payable; SECOND, to the payment in full of the Secured Loan Document Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Loan Document Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . Each Grantor shall remain liable for any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and deficiency if the Existing Senior Notes Trustee shall notify the proceeds of any sale or other disposition of Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt are insufficient to pay its Loan Document Obligations and the holding by the Existing Senior Notes Trustee fees and disbursements of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed attorneys employed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as collect such deficiency to the application by extent such fees and disbursements would be payable under Section 9.03 of the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themCredit Agreement.
Appears in 1 contract
Application of Proceeds. (a) The proceeds Subject to the terms of any applicable Intercreditor Agreement contemplated by this Agreement, in connection with the exercise of remedies provided for in Section 7.01, any amounts received by on account of the Collateral Agent Secured Obligations (including in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant or the Badcock Collateral (including any Collateral or Badcock Collateral consisting of cash) or the Guarantees) shall be applied by the Administrative Agent and/or the Collateral Agent, as applicable, to the exercise by payment of the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, Secured Obligations as follows: FIRST:
(i) first, to the payment of all fees, reasonable and documented or invoiced out of pocket costs and expenses incurred by the Collateral Agent in connection with such sale, collection, other realization or otherwise and to the payment of all other amounts owing to each of the Administrative Agent, and the Collateral Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all reasonable and documented or invoiced out of pocket court costs and the fees and expenses of its agents and legal counselagents, the repayment of all advances made by the Collateral Agent hereunder or it under any Mortgage Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECONDLoan Document, in each case, if and to the extent payable pursuant to the terms of the Loan Documents;
(ii) second, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the such Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution)) in accordance with this Agreement;
(iii) third, to any agent of any other junior secured debt, in accordance with any applicable Intercreditor Agreement; THIRDand
(iv) fourth, to the applicable PledgorsBorrower, their its successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Administrative Agent and/or the Collateral Agent Agent, as applicable, shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by In the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the event that application of payments or, Collateral proceeds or Badcock Collateral proceeds is to be made after any part bankruptcy or insolvency proceeding has been commenced, references in this Section 7.03(a) with respect to (i) interest shall include interest accruing after the commencement of the purchase money paid over to the Collateral Agent such bankruptcy or insolvency proceeding whether or not such officer interest is an allowed claim in such bankruptcy or be answerable insolvency proceeding, and (ii) any other amounts shall only include amounts that are allowed claims in any way for the misapplication thereofsuch bankruptcy or insolvency proceeding.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above Notwithstanding anything to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent contrary in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwiseSection 7.03(a), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant Excluded Swap Obligations with respect to the Existing Senior Notes Indenture. The Collateral Agent any Loan Party shall not be responsible for any diminution in funds resulting paid with amounts received from any such investment Loan Party or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02its assets, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the Existing Senior Notes allocation to Secured Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken otherwise set forth in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error7.03(a), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Sources: First Lien Credit Agreement (Franchise Group, Inc.)
Application of Proceeds. (a) The Agent shall apply the ----------------------- proceeds received by the Collateral Agent in respect of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral, as well as any Collateral pursuant to the exercise by the Collateral Agent consisting of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, reasonable costs and expenses incurred by the Collateral Agent (in its capacity as such hereunder or under any other Loan Document) and the Administrative Agent Lenders in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its their respective agents and legal counsel, the repayment of all reasonable advances made by the Collateral Agent and the Lenders hereunder or under any Mortgage on behalf of any Pledgor other Loan Document and any other all reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If In the event that the proceeds of any collection, recovery, receipt, appropriation, realization or sale as aforesaid are insufficient to pay all amounts to which the Agent or any or all of the Lenders are legally entitled, the Grantors will be jointly and severally liable for the deficiency, together with interest thereon, at the Default Rate, and the reasonable fees of any time any moneys collected or received attorneys employed by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction any or all of the Existing Senior Notes TrusteeLenders to collect such deficiency, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturityCredit Agreement.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Sources: Pledge and Security Agreement (Firearms Training Systems Inc)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall, subject to the Intercreditor Agreement, apply the proceeds of any collection or sale ofof Collateral, collection from or including any Collateral consisting of cash, and any other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the amounts received in its capacity as Collateral Agent of its remedies shall be applied, together with under any other sums then held by the Collateral Agent pursuant to this AgreementNoteholder Document, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Noteholder Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Noteholder Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Noteholder Document and all Collateral Agent’s fees and any other amounts owing to the Trustee or Collateral Agent pursuant to the first paragraph of Section 6.10 of the Indenture; SECOND, to the payment in full Trustee for application pursuant to the second paragraph of Section 6.10 of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); Indenture. THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant supplied to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire it as to the application by amounts of unpaid principal and interest and other amounts outstanding with respect to the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themSecured Obligations.
Appears in 1 contract
Sources: Second Lien Collateral Agreement (TAMINCO ACQUISITION Corp)
Application of Proceeds. (a) The proceeds a. Any and all amounts actually received by the Collateral Agent in connection with the enforcement of the Notes, shall, promptly upon receipt by the Collateral Agent, be applied:
(i) First, to the payment in full of all amounts owing to the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs fees and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, (including all court costs attorneys’ fees and the expenses and fees and expenses of its agents agents) incurred by or on behalf of the Collateral Agent as a result of administering this Agreement or the Collateral or exercising any rights (including foreclosure of the Collateral) in its capacity as Collateral Agent;
(ii) Second, following payment of all obligations under clause (i), between and legal counselamong each of the Secured Parties on a pro rata basis, computed using the then outstanding indebtedness, of both principal and accrued interest, of Borrower to each of the Secured Parties, as of the date of such distribution. Until the proceeds are so distributed, the repayment Collateral Agent shall hold the proceeds in trust for the benefit of each of the Secured Parties; and
(iii) Third, to Borrower unless otherwise directed by a court of competent jurisdiction.
b. The priorities of allocation set forth in Section 7-(a) above shall apply in all advances circumstances, including with respect to any distribution made in any case or proceeding under any bankruptcy law or insolvency law involving creditors’ rights generally.
c. If any Secured Party (an “Excess Party”) shall obtain any payment or other recovery (whether voluntary, involuntary, by application of setoff, or otherwise) as a result of the realization, sale or other remedial disposition of, or foreclosure on, any Collateral or Pledged Shares in excess of the amount it is then entitled to receive under the terms of this Agreement, such Excess Party shall hold such amount in trust for the ratable benefit of the other Secured Parties in accordance with the terms of this Agreement and shall pay an amount equal to such excess to the Collateral Agent for distribution to the Secured Parties in accordance with the terms of this Agreement.
a. In the event of any ambiguity or uncertainty hereunder or in any notice, certificate, instruction or other communication received by the Collateral Agent hereunder hereunder, the Collateral Agent may, in its sole discretion, refrain from taking any action other than retain possession of the Collateral and Pledged Shares , unless the Collateral Agent receives written instructions, signed by the Majority in Interest, or under any Mortgage on behalf an opinion of counsel of Borrower reasonably satisfactory to it, which eliminates such ambiguity or uncertainty.
b. In the event of any Pledgor and any other costs dispute between or expenses incurred in connection with the exercise of any right conflicting claims by or remedy hereunder or under any Mortgage; SECONDamong Borrower, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata and/or the Collateral Agent and/or any other person or entity with respect to any Collateral or Pledged Shares , the Collateral Agent shall be entitled, in accordance its sole discretion, to refuse to comply with the amounts of any and all claims, demands or instructions with respect to such Collateral or Pledged Shares so long as such dispute or conflict shall continue, and Collateral Agent shall not be or become liable in any way to Borrower or the Secured Obligations owed Parties for failure or refusal to them on the date of any comply with such distribution); THIRDconflicting claims, to the applicable Pledgors, their successors demands or assigns, or as a court of competent jurisdiction may otherwise directinstructions. The Collateral Agent shall be entitled to refuse to act until, in its sole discretion, such conflicting or adverse claims or demands shall have absolute discretion been determined by a final order, judgment or decree of a court of competent jurisdiction, which order, judgment or decree is not subject to appeal, or settled by agreement between the conflicting parties as evidenced in a writing satisfactory to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent may, in addition, elect, in its sole discretion, to commence an interpleader action or seek other judicial relief or orders as it may deem, in its sole discretion, necessary. The costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with such proceeding shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligationspaid by, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree deemed an obligation of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themBorrower.
Appears in 1 contract
Sources: Intercreditor and Collateral Agent Agreement (Quantumsphere, Inc.)
Application of Proceeds. (a) The proceeds received by After the occurrence of an Event of Default and acceleration of the Obligations pursuant to Section 7.1 of the Credit Agreement, the Collateral Agent in respect shall apply the proceeds of any collection or sale ofof the Collateral, collection from or other realization upon all as well as any Collateral consisting of cash, or any part Collateral granted under any other of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, Security Documents as follows: FIRST, to the payment of all fees, reasonable costs and expenses incurred by the Collateral Agent or the Administrative Agent Agents in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the reasonable fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent Agents hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other reasonable costs or expenses incurred in connection with the exercise of any right or remedy hereunder or hereunder, under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them accrued and unpaid interest and principal on the date of any such distribution)Swingline Loans; THIRD, to the applicable Pledgorspayment of accrued and unpaid interest on the Revolving Loans; FOURTH, to the payment of outstanding principal on the Revolving Loans; FIFTH, to the Cash Collateral Account as collateral for Letter of Credit Outstandings up to 105% thereof; SIXTH, to the payment of all fees due to the Administrative Agent, the Lenders and the Issuing Bank under the Loan Documents; SEVENTH, to the payment of all other Obligations of the Grantors (including, without limitation, any obligations under any Hedging Agreements); and EIGHTH, to the Grantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale or other disposition of the Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale or other disposition shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold or otherwise disposed of and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Sources: Security Agreement (Gamestop Corp)
Application of Proceeds. (a) The proceeds received by the Collateral Agent in respect shall apply all proceeds that it shall receive from any collection or sale of Pledged Collateral, as well as any sale ofPledged Collateral consisting of cash, collection from or other realization upon all or any part as follows (but subject to the provisions of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Intercreditor Agreement, as follows: ): FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document, in each case, payable by the Borrower or any other Pledgor pursuant to this Agreement or any other Loan Document; SECOND, to the payment of all such other Term Obligations as shall be owed to the Administrative Agent (in its capacity as such); THIRD, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata (as determined by the Collateral Agent) in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRDand FOURTH, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys proceeds or balances Pledged Collateral in accordance with this AgreementAgreement and the other Loan Documents. Upon any sale of Pledged Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Pledged Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Application of Proceeds. (a) The proceeds received by Subject to the provisions of the Intercreditor Agreements, the Collateral Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale ofof Collateral, collection from or other realization upon all or including any part such Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or and the Administrative Agent Trustee in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Note Document or any of the Secured ObligationsObligations secured by such Collateral, including without limitation all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the Trustee hereunder or under any Mortgage other Note Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Note Document, and all other fees, indemnities and other amounts owing or reimbursable to the Collateral Agent under any Note Document in its capacity as such; SECOND, to the payment in full of the other Secured Obligations secured by such Collateral (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the such Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall shall, subject to the provisions of the Intercreditor Agreements, have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral First Priority Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral purchase money by the First Priority Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral First Priority Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Application of Proceeds. (a) The proceeds received by Subject to the Collateral provisions of the First Lien Intercreditor Agreement and the First and a Half Lien Intercreditor Agreement, the Administrative Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured ObligationsLoan Obligations secured by such Collateral, including without limitation all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor and Grantor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document, and all other fees, indemnities and other amounts owing or reimbursable to the Administrative Agent under any Loan Document in its capacity as such; SECOND, to the payment in full of the Secured Loan Obligations secured by such Collateral (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured such Loan Obligations owed to them on the date of any such distribution, which in the case of Letters of Credit, shall be paid by deposit in an account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of each Issuing Bank and the Lenders, an amount in cash in Dollars equal to the aggregate Revolving L/C Exposure and Synthetic L/C Exposure as of such date plus any accrued and unpaid interest thereon), subject to Section 7.18; and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent Administrative Agent, subject to the provisions of the First Lien Intercreditor Agreement and the First and a Half Lien Intercreditor Agreement, shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral purchase money by the Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at Notwithstanding the foregoing, any time proceeds of Collateral to be distributed for application to a Secured Party’s liabilities with respect to any moneys collected issued but undrawn (or received unpaid) Revolving Letter of Credit shall be held by the Collateral Administrative Agent in an account pursuant to this Section 2.05(j) of the Credit Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trusteeas collateral security for any such liabilities until a drawing on such Revolving Letter of Credit, and if the Existing Senior Notes Trustee at which time such amounts, together with interest accrued thereon, shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application be released by the Existing Senior Notes Trustee of Administrative Agent and applied to such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indentureliabilities. The Collateral Agent shall not be responsible for any diminution in funds resulting from If any such investment Revolving Letter of Credit shall expire without having been drawn upon (or any liquidation thereof prior to maturity.
(cpaid) In making the determination and allocations required by this Section 4.02in full, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding held in such account with respect to the Existing Senior Notes Obligations and information supplied undrawn (or unpaid) portion of such Revolving Letter of Credit, together with interest accrued thereon, shall be applied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding in accordance with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction5.02(a) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themabove.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Realogy Holdings Corp.)
Application of Proceeds. (a) The Administrative Agent shall apply the proceeds received by the Collateral Agent in respect of any sale ofcollection, collection from sale, foreclosure or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection collection, sale, foreclosure or sale realization or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Administrative Agent hereunder or under any Mortgage other Loan Document on behalf of any Pledgor Grantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsGrantors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Administrative Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Administrative Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Administrative Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Administrative Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . The Grantors shall remain liable for any time deficiency if the proceeds of any moneys collected sale or received by disposition of the Collateral are insufficient to pay all Obligations, including any attorneys’ fees and other expenses incurred by Administrative Agent pursuant or any Lender to this Agreement are distributable pursuant to paragraph (a) above to collect such deficiency. Notwithstanding the Existing Senior Notes Trusteeforegoing, and if the Existing Senior Notes Trustee shall notify the proceeds of any collection, sale, foreclosure or realization upon any Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent any Grantor shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability applied to any Excluded Swap Obligation of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence Grantor and shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant instead be applied to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themother Obligations.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Americold Realty Trust)
Application of Proceeds. (a) The proceeds received by Subject to the terms of any applicable intercreditor agreement, the First Lien Collateral Agent in respect shall apply the proceeds of any collection or sale ofof Collateral, collection from or other realization upon all or including any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the First Lien Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other First Lien Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the First Lien Collateral Agent hereunder or under any Mortgage other First Lien Loan Document on behalf of any Pledgor Loan Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother First Lien Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to any agent of any other junior secured debt, in accordance with any applicable intercreditor agreement; and FOURTH, to the applicable PledgorsLoan Parties, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The First Lien Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the First Lien Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the First Lien Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the First Lien Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the First Lien Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant supplied to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire it as to the application by amounts of unpaid principal and interest and other amounts outstanding with respect to the Administrative Agent Secured Obligations. Notwithstanding the foregoing, Excluded Swap Obligations with respect to any Subsidiary Loan Party shall not be paid with amounts received from such Subsidiary Loan Party or its assets, but appropriate adjustments shall be made with respect to payments from other Loan Parties to preserve the Existing Senior Notes Trustee of any amounts distributed allocation to them.Secured Obligations otherwise set forth above. ARTICLE VIII ADMINISTRATIVE AGENT SECTION
Appears in 1 contract
Sources: Credit Agreement (LivaNova PLC)
Application of Proceeds. (a) The proceeds received by Subject to the terms of the Pari Passu Intercreditor Agreement (until the Discharge of the 2003 Obligations (as defined in the Pari Passu Intercreditor Agreement)), the Collateral Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale ofof Collateral, collection from or other realization upon all or as well as any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Applicable Agent and the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Loan Document or any of the Secured Obligations, Obligations including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Applicable Agent and the Collateral Agent in their respective capacity as Applicable Agent or Collateral Agent hereunder or or, under any Mortgage other Loan Document on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Loan Document; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the respective amounts of the Secured Obligations owed to them on the date of any such distribution); and THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Sources: Guarantee and Collateral Agreement (Nalco Holding CO)
Application of Proceeds. (a) The proceeds received by Subject to the Intecreditor Agreements, the Collateral Agent in respect shall promptly apply the proceeds, moneys or balances of any collection or sale ofof Collateral, collection from or other realization upon all or as well as any part Collateral consisting of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreementcash, as follows: FIRST, to the payment of all fees, costs and expenses and indemnification obligations incurred by the Collateral Agent or the Administrative Agent Trustee in connection with such collection or sale or otherwise in connection with this Agreement Agreement, any other Noteholder Documents or any of the Secured Notes Obligations, including including, without limitation, all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent or the Trustee hereunder or under any Mortgage other Noteholder Document on behalf of any Pledgor and Pledgor, any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgageother Noteholder Document, and all other fees, indemnities and other amounts owing or reimbursable to the Collateral Agent or the Trustee under any Noteholder Document in its capacity as such; SECOND, to the payment in full of the Secured Notes Obligations (the amounts so applied to be distributed among the Indenture Secured Parties pro rata in accordance with the respective amounts of the Secured Notes Obligations owed to them on the date of any such distribution); and THIRD, to the applicable PledgorsIssuer, their its successors or assigns, assigns or as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the purchase money by the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at . If, after receipt of any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above payment which is applied to the Existing Senior payment of all or any part of any Notes TrusteeObligations, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt Trustee or any Holder is for any reason compelled to surrender such payment or proceeds to any person because such payment or application of proceeds is invalidated, declared fraudulent, set aside, determined to be void or voidable as a preference, impermissible set-off, or a diversion of trust funds, or for any other reason, then the Notes Obligations or part thereof intended to be satisfied shall be revived and continued and this Agreement shall continue in full force as if such payment or proceeds had not been received by such Collateral Agent, Trustee or Holder and the Issuer shall be liable to pay to such Collateral Agent, Trustee and the Holders, and shall indemnify the Collateral Agent, Trustee and the Holders and holds the Collateral Agent, Trustee and the Holders harmless for the amount of such moneys pending the application thereof, payment or proceeds surrendered. The provisions of this paragraph shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired be and remain effective notwithstanding any contrary action which may have been taken by the Collateral Agent orAgent, Trustee or any Holder in reliance upon such payment or application of proceeds, and any such contrary action so taken shall be without prejudice to the absence of such directionCollateral Agent’s, hold such moneys uninvested Trustee’s and the Holders’ rights under this Agreement and shall hold all be deemed to have been conditioned upon such amounts so distributable payment or application of proceeds having become final and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indentureirrevocable. The Collateral Agent provisions of this paragraph shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturitysurvive the termination of this Agreement.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Application of Proceeds. (a) The proceeds received by Subject to the terms of the First Lien/Second Lien Intercreditor Agreement, the Collateral Agent in respect shall apply the proceeds of any collection or sale ofof Collateral, collection from or other realization upon all or including any part Collateral consisting of cash in the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as followsfollowing order: FIRSTFirst, to the payment of all reasonable costs and expenses, fees, costs commissions and expenses taxes of such sale, collection or other realization including compensation to the Collateral Agent, the Trustee and any other Additional Pari Passu Agent and their respective agents and counsel, and all expenses, liabilities and advances made or incurred by the Collateral Agent or the Administrative Agent, Trustee and any other Additional Pari Passu Agent in connection with such collection or sale or otherwise in connection with this Agreement or any therewith and all fees, expenses, indemnities and other amounts for which each of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder and the Trustee is entitled pursuant to the provisions of the Indenture, any other Security Document or under any Mortgage on behalf of any Pledgor this Agreement and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata Additional Pari Passu Agent in accordance with the amounts terms of the Secured applicable Additional Pari Passu Agreements then in effect; Second, subject to clause (e) below, to all amounts then owing in respect of the Obligations owed to them on a pro rata basis; and Third, the date of any such distribution); THIRDbalance, if any, to the applicable Pledgors, their successors Company or assigns, Guarantors or such other persons as a court of competent jurisdiction may otherwise direct. are entitled thereto.
(b) The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such informationinformation supplied to it as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Secured Obligations, provided that nothing in this sentence shall prevent any Pledgor Grantor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 4.2 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to themit.
(c) If, despite the provisions of this Agreement, any Secured Party shall receive any payment or other recovery in excess of its portion of payments on account of the Secured Obligations to which it is then entitled in accordance with this Agreement, such Secured Party shall hold such payment or other recovery in trust for the benefit of all Secured Parties hereunder for distribution in accordance with this Section 4.2.
(d) In making the determinations and allocations required by this Section 4.2, the Collateral Agent may conclusively rely upon information supplied by the Trustee or each Additional Pari Passu Agent, as applicable, as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Secured Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Grantor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 4.2 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Trustee or any Additional Pari Passu Agent of any amounts distributed to it. All distributions to be made on accrual of interest and principal on the Notes shall be made to the Trustee for further distribution in accordance with the Indenture.
(e) Notwithstanding the foregoing and the pari passu nature of all the Secured Obligations under the Notes, on the one hand, and the other Other Second-Priority Obligations, on the other hand, in the event of any determination by a court of competent jurisdiction that (i) any of such other Other Second-Priority Obligations are unenforceable under applicable law or are subordinated to any other obligations, (ii) any of such other Other Second-Priority Obligations do not have an enforceable security interest in any of the Collateral (as such term is defined in the Indenture) and/or (iii) any intervening security interest exists securing any other obligations (other than obligations under the Notes or other series of Other Second-Priority Obligations) on a basis ranking prior to the security interest of such other Other Second-Priority Obligations but junior to the security interest of the Secured Obligations under the Notes (any such condition referred to in the foregoing clauses (i), (ii) or (iii) with respect to any such Other Second-Priority Obligations, an “Impairment” of such other Other Second-Priority Obligations), the results of such Impairment shall be borne solely by the holders of such other Other Second-Priority Obligations, and the rights of the holders of such other Other Second-Priority Obligations (including, without limitation, the right to receive distributions in respect of such other Other Second-Priority Obligations) set forth herein shall be modified to the extent necessary so that the effects of such Impairment are borne solely by the holders of such other Other Second-Priority Obligations subject to such Impairment. Notwithstanding the foregoing, with respect to any Collateral (as such term is defined in the Indenture) for which a third party (other than a holder of Other Second-Priority Obligations) has a lien or security interest that is junior in priority to the security interest of the holders of the Notes but senior (as determined by appropriate legal proceedings in the case of any dispute) to the security interest of the holder of any other Other Second-Priority Obligations (such third party, an “Intervening Creditor”), the value of any Collateral or proceeds that are allocated to such Intervening Creditor shall be deducted on a ratable basis solely from the Collateral or proceeds to be distributed in respect of the Other Second-Priority Obligations with respect to which such Impairment exists.
Appears in 1 contract
Sources: Second Lien Security Agreement (SeaWorld Entertainment, Inc.)
Application of Proceeds. (a) The proceeds Upon the occurrence and during the continuance of an Event of Default, all Proceeds received by the Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies Sellers under this Agreement shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, applied as follows: :
(i) FIRST, to the payment of all costs and expenses of the sale, collection or other liquidation of the Collateral, including fees, charges and disbursements of counsel of the Sellers, and all other expenses, liabilities and advances made or incurred by the Sellers in connection therewith, and all amounts for which the Sellers are entitled to payment under Section 8.05 and such amounts paid or required to be paid (including any redemption or tender premiums and new issuance, arrangement, underwriting or similar fees, costs and expenses) to any lender, debt holder, financing source, agent, trustee or other representative with respect to any Indebtedness of any Group Member that is required to be amended, modified, refinanced or otherwise replaced in connection with, as a result of, or due to, the of any right or remedy (including the sale, transfer or other Disposition of any Collateral by the Sellers to any other Person) under this Agreement or claims arising out of Section 2.2(c) of the Purchase Agreement, and to the payment of all costs and expenses paid or incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured Obligations, including all court costs and the fees and expenses of its agents and legal counsel, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred Sellers in connection with the exercise of any right or remedy hereunder under this Agreement or under any Mortgage; claims arising out of Section 2.2(c) of the Purchase Agreement, all in accordance with the terms thereof;
(ii) SECOND, to the extent of any excess of such Proceeds, to the indefeasible payment in full in cash of the Secured other Obligations (including the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts payment of the Secured Obligations owed Installment Payment pursuant to them on the date terms of any such distribution)the Purchase Agreement and Section 7.02 hereto; and
(iii) THIRD, to the applicable Pledgorsextent of any excess of such Proceeds, their successors to the payment to Holdings or assigns, or to whosoever may be lawfully entitled to receive the same as a court of competent jurisdiction may otherwise direct. The Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys or balances in accordance with this Agreement. Upon any sale of Collateral by the Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination and allocations required by this Section 4.02, the Collateral Agent may conclusively rely upon information supplied by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Collateral Agent pursuant to this Section 10.1 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Collateral Agent shall have no duty to inquire as to the application by the Administrative Agent or the Existing Senior Notes Trustee of any amounts distributed to them.
Appears in 1 contract
Sources: Guarantee, Pledge and Security Agreement (SemGroup Corp)
Application of Proceeds. Subject to the terms of the ABL Intercreditor Agreement:
(a) The proceeds received by the Notes Collateral Agent in respect shall apply the proceeds of any sale of, collection from or other realization upon all or any part of the Pledged Collateral pursuant to the exercise by the Collateral Agent of its remedies shall be applied, together with any other sums then held by the Collateral Agent pursuant to this Agreement, as follows: FIRST, to the payment of all fees, costs and expenses incurred by the Collateral Agent or the Administrative Agent in connection with such collection or sale or otherwise in connection with this Agreement or any of the Secured ObligationsCollateral, including all court costs and the fees and expenses any Collateral consisting of its agents and legal counselcash, the repayment of all advances made by the Collateral Agent hereunder or under any Mortgage on behalf of any Pledgor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any Mortgage; SECOND, to the payment in full of the Secured Obligations (the amounts so applied to be distributed among the Secured Parties pro rata in accordance with the amounts of the Secured Obligations owed to them on the date of any such distribution); THIRD, to the applicable Pledgors, their successors or assigns, or as a court of competent jurisdiction may otherwise direct. Indenture.
(b) The Notes Collateral Agent shall have absolute discretion as to the time of application of any such proceeds, moneys monies or balances in accordance with this AgreementAgreement and the Indenture. Upon any sale of Collateral by the Notes Collateral Agent (including pursuant to a power of sale granted by statute or under a judicial proceeding), the receipt of the Notes Collateral Agent or of the officer making the sale shall be a sufficient discharge to the purchaser or purchasers of the Collateral so sold and such purchaser or purchasers shall not be obligated to see to the application of any part of the purchase money paid over to the Notes Collateral Agent or such officer or be answerable in any way for the misapplication thereof.
(b) If at any time any moneys collected or received by the Collateral Agent pursuant to this Agreement are distributable pursuant to paragraph (a) above to the Existing Senior Notes Trustee, and if the Existing Senior Notes Trustee shall notify the Collateral Agent in writing that no provision is made under the Existing Senior Notes Indenture for the application by the Existing Senior Notes Trustee of such moneys (whether because the Existing Senior Notes Indenture does not effectively provide for the receipt and the holding by the Existing Senior Notes Trustee of such moneys pending the application thereof or otherwise), then the Collateral Agent, after receipt of such moneys pending the application thereof, shall at the direction of the Existing Senior Notes Trustee, invest such amounts in Eligible Securities maturing within 90 days after they are acquired by the Collateral Agent or, in the absence of such direction, hold such moneys uninvested and shall hold all such amounts so distributable and all such investments and the net proceeds thereof in trust solely for the Existing Senior Notes Trustee (in its capacity as trustee) and for no other purpose until such time as the Existing Senior Notes Trustee shall request in writing the delivery thereof by the Collateral Agent for application pursuant to the Existing Senior Notes Indenture. The Collateral Agent shall not be responsible for any diminution in funds resulting from any such investment or any liquidation thereof prior to maturity.
(c) In making the determination determinations and allocations required by this Section 4.02, the Notes Collateral Agent may conclusively rely upon information supplied to or by the Existing Senior Notes Trustee as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Existing Senior Notes Obligations and information supplied by the Administrative Collateral Agent as to the amounts of unpaid principal and interest and other amounts outstanding with respect to the Credit Agreement Obligations, and the Notes Collateral Agent shall have no liability to any of the Secured Parties for actions taken in reliance on such information, provided that nothing in this sentence shall prevent any Pledgor Grantor from contesting any amounts claimed by any Secured Party in any information so supplied. All distributions made by the Notes Collateral Agent pursuant to this Section 10.1 4.02 shall be (subject to any decree of any court of competent jurisdiction) final (absent manifest error), and the Notes Collateral Agent shall have no duty to inquire as to the application by the Administrative Notes Collateral Agent or the Existing Senior Notes Trustee of any amounts distributed to themit.
Appears in 1 contract