Permitted Payments. Subject to the terms and conditions hereof, CBI shall be permitted to make (i) regularly scheduled payments of principal and interest due and payable under the terms of the Loan Agreement between Castle Brands Inc. and the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Payments.
Appears in 1 contract
Permitted Payments. Subject Section 2.1 and Section 2.2 of this Intercreditor Agreement shall not prohibit the payment by the Existing Foreign Borrowing Subsidiaries (and, to the terms extent not paid by any Existing Foreign Borrowing Subsidiary, the other Existing Foreign Subsidiary Guarantors) and conditions hereof, CBI shall be permitted to make (i) regularly the receipt by the Pre-Petition Lenders of scheduled monthly payments of principal interest and interest letter of credit and other fees, including without limitation, professional fees, due from the Existing Foreign Borrowing Subsidiaries under the Pre-Petition Credit Agreement in the manner and to the extent set forth in Section 4 of the Standstill Agreement and in the Orders so long as (other than in the case of professional fees) no Default or Event of Default has occurred and is continuing (or would result after giving effect to any such payments) and the Pre-Petition Agent has received notice (which need not be in writing) of such Default or Event of Default; provided that under no circumstances shall the Subordination Fee be payable to the Pre-Petition Lenders until the DIP Lender Claims have been paid in full. Nothing contained in this Agreement is intended to or shall impair, as among the Existing Foreign Subsidiaries and the Pre-Petition Lenders, the obligation of the Existing Foreign Subsidiaries, which is absolute and unconditional, to pay to the Pre-Petition Lenders the Pre-Petition Lender Claims as and when the same shall become due and payable under in accordance with the terms thereof, or is intended to or shall affect the relative rights of the Loan Agreement between Castle Brands Inc. Pre-Petition Lenders and creditors of the Existing Foreign Subsidiaries other than the DIP Lenders, nor shall anything herein prevent the Pre-Petition Lenders from exercising all remedies otherwise permitted by applicable law upon default, subject in each case to the rights, if any, of the DIP Lenders set forth herein and the lending parties named therein dated Standstill Agreement. The failure to make a payment on account of principal of, premium, if any, or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect interest on the date hereof, and voluntary prepayments Pre-Petition Lender Claims by reason of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes provision of this Agreement will not be construed as preventing the CBI August 2013 Subordinated Noteholders and occurrence of a Standstill Event under the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted PaymentsStandstill Agreement.
Appears in 1 contract
Sources: Intercreditor and Subordination Agreement (Exide Corp)
Permitted Payments. Subject (a) The Subordinated Lender shall not accept from Obligors any payments of principal, interest, fees on the Subordinated Obligations or any other amount owed by any Obligor to the terms Subordinated Lender, but may accrue and conditions hereofcapitalize interest, CBI shall be permitted to make (i) regularly scheduled payments of principal fees and interest due and payable under expenses on the terms Subordinated Obligations in accordance with the provisions of the Loan Subordinated Credit Agreement between Castle Brands Inc. and the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, provided that upon the payment in full of all the Senior Obligations, the Obligors may make regularly scheduled interest payments in cash to the Subordinated Lender. Other than as expressly set forth immediately above in this Section 3(a), no payments, proceeds or distributions shall be made by any Obligor or any Subsidiary thereof or accepted by the Subordinated Lender on the Subordinated Obligations until after the date that is 181 days after the Senior Termination Date, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents any payment, proceeds or distributions made by an Obligor or received (including by set-off, recoupment, as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not proceeds of any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, Collateral or any other CBI August 2013 manner) by the Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under Lender other than as expressly permitted above shall be deemed the terms property of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, Senior Agent and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to timeSenior Creditors, shall be collectively referred segregated by the Subordinated Lender and be deemed to herein have been received by and held by the Subordinated Lender in trust for the Senior Agent and the other Senior Creditors, and shall be turned over by the Subordinated Lender as the, the “2018 Subordinated Debt Documents”), soon as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant practical to the terms of Senior Agent in the 2018 Subordinated Debt Documents, due identical form received (with any necessary endorsements) for distribution to the acceleration of maturity of 2018 Subordinated Notes, Senior Creditors in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, accordance with the Senior Transaction Documents.
(b) No Senior Default shall be deemed to have been waived for any reason. For purposes of this Agreement Section 3 unless and until the CBI August 2013 Subordinated Noteholders Obligors and the 2018 Subordinated Noteholders Lender shall have received a written notice of the waiver of such Senior Default from the Senior Agent.
(c) If the Subordinated Lender receives payment pursuant to clause (a) of this Section 3, such payment shall be collectively referred deemed to as constitute a representation by the “Junior Creditors”, Obligors to the CBI August 2013 Subordinated Loan Documents Senior Agent and the 2018 Subordinated Debt Documents other Senior Creditors that each of the conditions set forth in subclause 3(a) are satisfied and that such payment is otherwise permitted by such clause (a) and the Senior Transaction Documents.
(d) The provisions of Section 3(a) shall not be referred applicable to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to extent that the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Payments4 are applicable.
Appears in 1 contract
Sources: Intercreditor and Subordination Agreement (RxElite, Inc.)
Permitted Payments. Subject to (a) So long as part of the terms Superior Indebtedness remains outstanding and conditions hereofuntil such time as the Agent provides the Subdebt Holder with written notice that a Default or Event of Default (as defined in the Credit Agreement) has occurred (a "Default Notice"), CBI shall be permitted to the Borrower may make and the Subdebt Holder may receive (i) regularly scheduled interest payments when and as due on the Subordinated Debt pursuant to the original terms thereof and (ii) if the Subordinated Debt has a term of repayment of not less than 3 years and provides for equal principal and interest due and payable under the terms payments in each year of the Loan Agreement between Castle Brands Inc. term of such Subordinated Debt, regularly scheduled principal payments when and as due. Upon the occurrence of an Event of Default, the Borrower may not make, and the lending parties named therein dated on Subdebt Holder may not receive, regularly scheduled interest or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted principle payments pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated NotesDebt. The Agent, in whole its discretion, may issue a Default Notice with respect to each and every such Default or in partEvent of Default that occurs, but shall not have the right to issue more than one Default Notice with respect to any particular Default or any other CBI August 2013 Subordinated Loan DocumentEvent of Default; provided, in whole however, that if a Default or in part, for any reason, and Event of Default has been cured or waived (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”deemed waived as provided below), but subsequently reoccurs, then a new Default Notice may be sent with respect thereto. In the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) event that all Defaults and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, Events of Default shall be collectively referred to herein as thecured or waived, then the “2018 Subordinated Debt Documents”)Borrower may resume the making of payments otherwise permitted hereunder, as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant subject to the terms hereof.
(b) Except as expressly set forth above, the Subdebt Holder, prior to the final payment and satisfaction in full in cash of the 2018 Subordinated Debt DocumentsSuperior Indebtedness and the termination of all financing arrangements between the credit parties and the Superior Lender in connection with the Credit Agreement (including letters of credit), due shall have no right to enforce any payment with respect to the acceleration of maturity of 2018 Subordinated Notes, in whole or in partObligations, or to otherwise take any action against any Subordinated Obligations credit party or any of their respective assets in connection therewith.
(c) It is understood and agreed by the Subdebt Holder that payments of the Subordinated Obligations other 2018 Subordinated Debt Document, than as expressly permitted in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) 3 shall not be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Paymentspermitted.
Appears in 1 contract
Permitted Payments. (a) Subject to all the other terms and conditions hereofof this Subordination Agreement, CBI shall be permitted to make Senior Creditor hereby agrees that, unless and until Senior Creditor has notified the Junior Creditor Representative of the occurrence of a default or an event of default or the occurrence of an event or existence of a condition which does, or would, with notice or lapse of time or both constitute an event of default under the Senior Creditor Agreements, and in each case specifying such event (such notice a "Payment Block Notice"), Hanover may make, and Junior Creditor may receive and retain from Hanover (i) regularly scheduled payments of interest when due as regularly scheduled, and (ii) payment of principal when due at scheduled maturity on August 1, 1998, and (iii) prepayments of principal, plus accrued interest due thereon, funded with the proceeds of an equity offering of Hanover, in each case under clauses (i) and payable under (ii) in accordance with the terms of the Loan Agreement between Castle Brands Inc. Notes and the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein Indenture as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereofhereof (but not any other prepayment of principal or interest or other payment of principal or any payment pursuant to acceleration or claims of breach or any payment to acquire any Junior Debt or otherwise), and voluntary prepayments (iv) reimbursement to Junior Creditor, prior to an event of principal default under any Junior Debt, for out-of-pocket expenses payable by Hanover pursuant to the Junior Creditor Agreements. After a Payment Block Notice is given, no payment otherwise permitted to be made to or received in respect of the Junior Debt may be made to or received by Junior Creditor until the expiration of the Standstill Period hereunder, and interest permitted no such payment may be made or received after such period if a Complete Standstill Event has occurred or shall thereafter occur and while such Complete Standstill Event is continuing.
(b) No event of default which existed or was continuing under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect Senior Creditor Agreements on the date hereofany Payment Block Notice is given, but and which is subsequently waived by Senior Creditor, shall be or be made the basis for the giving of a subsequent Payment Block Notice, unless such event of default shall be waived by Senior Creditor as to the specific circumstances giving rise to such event of default, for a period of not less than 365 days following the occurrence of such event of default.
(c) Senior Creditor may give any mandatorynumber of Payment Block Notices hereunder, voluntaryprovided that the aggregate number of days that any one or more Standstill Period(s) hereunder shall be in effect shall not exceed 180 days during any 365 consecutive days, discretionary or optional payment, distribution, or other amount in repayment or prepayment irrespective of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant number of defaults with respect to the terms Senior Creditor Agreements; and provided further that, upon expiration or rescission of the CBI August 2013 Subordinated Loan Documentssuch Standstill Period, due to the acceleration Junior Creditor must receive payment of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) all regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21and, 2013 if applicable, principal payments described in clauses (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”ii) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”iii) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a3.2(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Payments.which have become due
Appears in 1 contract
Permitted Payments. Subject Notwithstanding the provisions of Section 2 of this AGREEMENT, until the LENDER has delivered to the SUBORDINATING CREDITOR a SUBORDINATION NOTICE, GSE SYSTEMS may pay to the SUBORDINATING CREDITOR, and the SUBORDINATING CREDITOR may accept or receive from GSE SYSTEMS the following payments, provided that the making of such payments by or on behalf of GSE SYSTEMS will not result in a DEFAULT or an EVENT OF DEFAULT:
(a) Beginning on July 1, 2001, GSE SYSTEMS may pay to the SUBORDINATING CREDITOR regularly scheduled payments of accrued interest provided for under the SUBORDINATED NOTE when and as the same become due under the terms and conditions hereofset forth in the SUBORDINATED NOTE (but without giving effect to any amendment or modification thereof which would have the effect of increasing the amount of any such payment or accelerating the due dates of such payments unless the LENDER has given its prior written consent thereto);
(b) Beginning on April 1, CBI shall be permitted 2004, GSE SYSTEMS may pay to make (i) the SUBORDINATING CREDITOR regularly scheduled payments of principal provided for under the SUBORDINATED NOTE when and interest as the same become due and payable under the terms set forth in the SUBORDINATED NOTE (but without giving effect to any amendment or modification thereof which would have the effect of increasing the amount of any such payment or accelerating the due dates of any such payments, unless the LENDER has given its prior written consent thereto).
(c) GSE SYSTEMS may pay to the SUBORDINATING CREDITOR payments of other sums and charges provided for under the SUBORDINATED NOTE with the prior written consent of the Loan Agreement between Castle Brands Inc. LENDER. Upon the giving of a SUBORDINATION NOTICE by the LENDER to the SUBORDINATING CREDITOR, the absolute subordination and standby provisions of Section 2 shall govern and control and the lending parties named therein dated on SUBORDINATING CREDITOR shall not be entitled to receive any payments upon the SUBORDINATED DEBT until the date the LENDER provides the SUBORDINATING CREDITOR with written notice that there are no currently existing DEFAULTS or about August 7, 2013 EVENTS OF DEFAULT. Within ten (10) calendar days after all DEFAULTS and EVENTS OF DEFAULT have been either expressly waived by the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on LENDER in writing or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) are cured to the lending parties named therein (collectivelyLENDER'S satisfaction, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered LENDER shall provide written notice thereof to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted PaymentsSUBORDINATING CREDITOR.
Appears in 1 contract
Sources: Subordination and Intercreditor Agreement (Gse Systems Inc)
Permitted Payments. Subject (a) Unless permitted under Section 11(h) hereunder or otherwise consented to by the terms and conditions hereofSenior Lenders, CBI the Subordinated Lender shall be permitted to make (i) regularly scheduled not accept from Obligors any cash payments of principal principal, interest or fees on account of the Subordinated Obligations, but may accrue and interest due capitalize interest, fees and payable expenses on the Subordinated Obligations as permitted under the terms provisions of the Loan Agreement between Castle Brands Inc. and the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein Note as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments . Nothing in this Agreement shall be deemed to authorize the making of principal and interest permitted under the terms any such payments by any of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but Obligors or any Subsidiary thereof not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or otherwise permitted pursuant to the terms of the CBI August 2013 Subordinated Senior Loan Documents. Other than as expressly set forth in Sections 3(a) and 11(h), due to no payments, proceeds or distributions shall be made by any Obligor or any Subsidiary thereof or accepted by the acceleration of maturity Subordinated Lender on account of the CBI August 2013 Subordinated NotesObligations until after the Termination Date, in whole whether or in partnot any Insolvency Proceeding has been commenced by or against any Obligor, and any payment, proceeds or distributions made by an Obligor or received (including by set-off, recoupment, as the proceeds of any Collateral or any other CBI August 2013 manner) by the Subordinated Loan DocumentLender other than as expressly permitted above shall be deemed the property of the Senior Agent and the Senior Lenders, shall be segregated by the Subordinated Lender and be deemed to have been received by and held by the Subordinated Lender in whole or in part, trust for any reasonthe Senior Agent and the Senior Lenders, and shall be turned over by the Subordinated Lender as soon as practical to the Senior Agent in the identical form received (iiwith any necessary endorsements) regularly scheduled payments for distribution to the Senior Lenders in accordance with the Senior Loan Documents. Senior Agent is hereby authorized to make any such endorsements as agent for the Subordinated Lender. This authorization is coupled with an interest and is irrevocable until the Termination Date.
(b) No Senior Default shall be deemed to have been waived for purposes of interest due this Section 3 unless and payable under until the terms Obligors and the Subordinated Lender shall have received a written notice of the Castle Brands Inc. 5% waiver of such Senior Default from each applicable Senior Agent.
(c) If the Subordinated Convertible Notes due 2018 Purchase Agreement dated on Lender receives payment pursuant to Section 3(a) or about October 21a distribution of, 2013 (the “2018 or payment on, Reorganization Subordinated Notes Purchase Agreement”Securities pursuant to Section 11(h), such payment or distribution shall be deemed to constitute a representation by the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued Obligors to the “Purchasers” Senior Agent and the Senior Lenders that each of the conditions set forth in Section 3(a) or Section 11(h), as applicable, are satisfied and that such payment or distribution is otherwise permitted by such Sections 3(a) or 11 (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreementh), as applicable, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Senior Loan Documents”.
(d) Notwithstanding the foregoing, each payment permitted pursuant to the provisions of this Section 8.6(a3(a) shall not be referred applicable to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement the extent that the provisions of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted PaymentsSection 4 hereof are applicable.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.)
Permitted Payments. Subject (i) Until Lender provides written notice to Creditor (with a copy to Borrower) (a “Default Notice”) of the occurrence of an Event of Default under the Loan Agreement (a “Borrower Default”) in accordance with the terms of Section 21 of this Agreement, Borrower may make, and Creditor may retain, to the terms and conditions hereof, CBI shall be permitted to make extent such payment would not violate this Agreement or the Loan Agreement: (iA) regularly scheduled payments of principal principal, interest, fees and interest due and payable under reimbursement of other expenses in accordance with the terms of the Subordinated Debt Documents; (B) a payment of $200,000 to Creditor as payment in full of the amounts owed by Borrower under that certain promissory note by Borrower to Creditor dated as of October 6, 2005, having a principal amount of $100,000 and that certain promissory note by Borrower to Creditor dated as of October 19, 2005 having a principal amount of $100,000, provided that concurrent therewith all security interests of Creditor in Borrower or its subsidiaries relating thereto shall be immediately released, (C) a disbursement of Borrower’s common stock as satisfaction in full of the amounts owed by Subsidiary to Creditor under the Subordinated Debt Note and the Stock Purchase Agreement as set forth in Section 22 below, and (D) payment of an aggregate of $100,000 to Creditor and ▇▇▇ ▇▇▇▇▇ for payment of amounts borrowed by Creditor and ▇▇▇ ▇▇▇▇▇ under that certain Business Loan Agreement between Castle Brands Inc. dated as of September 23, 2005 among Creditor, ▇▇▇ ▇▇▇▇▇ and the lending parties named therein dated on or about August 7SouthwestUSA Bank, 2013 as amended, and advanced to Borrower.
(the “CBI August 2013 Subordinated Loan Agreement”ii) Following a Default Notice, Borrower may resume regularly scheduled payments (and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) may make any payments missed due to the lending parties named therein application of this Agreement) in respect of the Subordinated Debt upon the cure or waiver of such Borrower Default. For purposes hereof, no payments of principal, interest or fees due upon acceleration of any of the Subordinated Debt shall constitute regularly scheduled payments thereof.
(collectively, the “CBI August 2013 Subordinated Noteholders”iii) and such other agreements, documents and instruments executed and/or delivered Notwithstanding any provision in this Agreement to the CBI August 2013 Subordinated Noteholders in connection therewith contrary (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect A) no Borrower Default existing on the date hereofany Default Notice is given pursuant to Section 3(a)(i) shall, unless the same shall have ceased to exist for a period of at least 30 consecutive days, be used as the basis for any subsequent such notice; and voluntary prepayments (B) the failure of principal and interest permitted under Borrower to make any payment with respect to the terms Subordinated Debt by reason of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date operation of this Agreement shall not be disregarded for purposes construed as preventing the occurrence of determining Permitted Payments.a default under any agreement, document or instrument evidencing or securing the Subordinated Debt;
Appears in 1 contract
Permitted Payments. Subject to the terms and conditions hereof, CBI shall be permitted to make make:
(i) regularly scheduled concurrently with the Effective Date principal payments in an aggregate amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) plus aggregate accrued and unpaid interest of principal Twenty Three Thousand Five Hundred Eight and interest due and payable under the terms 00/100 Dollars ($23,508.00) in full repayment of the Loan Agreement between Castle Brands Inc. and the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and ;
(ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes ; and
(iii) concurrently with the Eighth Amendment Effective Date the entire amount then due and payable under the terms of this Agreement the CBI August 2013 11% Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to Note due 2020 dated March 29, 2017, as the “Junior Creditors”amended, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions issued by Castle Brands Inc. in favor of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted PaymentsFrost Nevada Investment Trust.
Appears in 1 contract
Permitted Payments. Subject (a) Unless and until the Discharge of Senior Obligations shall have occurred, without the prior written consent of the Senior Representatives, on behalf of the applicable Senior Secured Parties and acting at the written direction of the requisite holders in the applicable Senior Debt Documents, all Second Priority Debt shall be subordinated in right of payment to the terms prior Discharge of Senior Obligations and conditions hereofthe Obligors may not pay to any Second Priority Debt Party, CBI shall be permitted to make and no Second Priority Debt Party may accept and/or receive on account of any Second Priority Debt, any payment, other than (ix) payments in kind as provided for any Second Priority Debt Document, (y) regularly scheduled interest payments and payment of fees and expenses in respect of any Second Priority Debt and (z) payments of principal Second Priority Debt on the stated maturity date thereof.
(b) Unless and interest due until the Discharge of Senior Obligations shall have occurred, and payable under the terms of the Loan Agreement between Castle Brands Inc. and the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 except as expressly set forth in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”Section 2.06(a), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereofeach Second Priority Representative and each other Second Priority Debt Party agrees that it shall not take, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not accept or receive any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment payment or prepayment of the CBI August 2013 Subordinated Notes principal of any Second Priority Debt, any payments resulting from any breach or default under any of the CBI August 2013 Subordinated Loan Second Priority Debt Documents, whether required or permitted pursuant to the terms any prepayment as a result of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in partany amounts due under any Second Priority Debt Document, or any other CBI August 2013 Subordinated Loan direct or indirect payments or distributions of any kind or character (whether in cash, securities, assets, by set-off, or otherwise), on account of any Second Priority Debt. For the avoidance of doubt, the foregoing prohibitions on payment, shall not prohibit the Second Priority Debt Parties from accruing default interest on the amounts due and owing in respect of any Second Priority Debt in accordance with the Second Priority Debt Document.
(c) Except as expressly set forth in Section 2.06(a), if any payment or distribution of any kind or character, whether in whole cash, property or securities, from or of any assets of any Obligor (irrespective of whether such payment or distribution was of Shared Collateral or Proceeds thereof) is received by any Second Priority Debt Party prior to the Discharge of Senior Obligations, such Second Priority Debt Party shall segregate and hold the same in parttrust for the benefit of and forthwith pay over such payment, distribution or proceeds to the Designated Senior Representative for the benefit of the Senior Secured Parties in the same form as received, for application on any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes Senior Obligations, whether then due 2018 Purchase Agreement dated on or about October 21, 2013 (not due. In the “2018 Subordinated Notes Purchase Agreement”)event of the failure of a Second Priority Debt Party to make any such endorsement or assignment to the Designated Senior Representative, the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, Designated Senior Representative and any amendment, modification, restatement, extension of its officers or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Paymentsagents are hereby irrevocably authorized to make such endorsement or assignment.
Appears in 1 contract
Sources: First Lien/Second Lien Intercreditor Agreement (DISH Network CORP)
Permitted Payments. (a) Subject to the terms and conditions hereoflast sentence of this Section 2.2(a), CBI with respect to the Subordinated Debt, Issuer shall be permitted to make make, and Subordinated Creditor shall be permitted to receive and retain, only the following payments (ithe “Permitted Payments”): following the Permitted Payments Date, (x) payments of accrued interest (at a non-default rate) owed on the Subordinated Debt, when due, (y) regularly scheduled payments of principal owing under the Subordinated Note on a non-accelerated basis and interest due and payable under (z) prepayments to the Subordinated Creditor in accordance with the terms of Section 8 of the Loan Agreement between Castle Brands Inc. Subordinated Note; provided, for avoidance of doubt, that Issuer shall not be permitted to make, and Subordinated Creditor shall not be permitted to receive or retain, directly or indirectly, any payments of any kind in respect of the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) Debt at any time prior to the lending parties named therein (collectivelyPermitted Payments Date, without the “CBI August 2013 prior consent of the Senior Creditor. Notwithstanding the foregoing, no Permitted Payment shall be permitted to be made by Issuer or any of its Subsidiaries or retained by Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered Creditor to the CBI August 2013 extent such Permitted Payment would be made by Issuer or any of its Subsidiaries or received by Subordinated Noteholders in connection therewith (all such agreements, documents Creditor from and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on after the date hereofon which notice of a Senior Default Notice is given in accordance with Section 4.8 ; provided, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereofhowever, but not any mandatorythat, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, if Issuer or any other CBI August 2013 of its Subsidiaries and Subordinated Loan DocumentCreditor shall have received a Senior Default Notice, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications Permitted Payments may be made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, by Issuer or any other 2018 of its Subsidiaries and retained by Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders Creditor on and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded the earliest to occur of: (i) the day on which the Senior Default that is the subject of such Senior Default Notice is cured or waived by Senior Creditor or (ii) payment in full in cash of the Senior Debt.
(b) Except for purposes of determining Permitted Payments, should any payment or distribution be transferred or made by or on behalf of the Issuer or any of its Subsidiaries to the Subordinated Creditor or received by Subordinated Creditor in respect of the Subordinated Debt or otherwise, Subordinated Creditor shall receive and hold the same in trust, as trustee, for the benefit of Senior Creditor, segregated from other funds and property of Subordinated Creditor, and shall forthwith deliver the same to Senior Creditor (together with any endorsement or assignment of Subordinated Creditor where necessary), for application to any of the Senior Debt. In the event of the failure of Subordinated Creditor to make any such endorsement or assignment to Senior Creditor, such Senior Creditor, or any of its officers or employees, are hereby irrevocably authorized on behalf of Subordinated Creditor to make the same. Notwithstanding anything to the contrary set forth in the F8 Documents or the Subordinated Note Agreements, the Issuer shall not issue any of its Common Stock, $0.001 par value per share, or any securities convertible, exchangeable or exercisable for such Common Stock pursuant to any of the F8 Documents, the Subordinated Note Agreements or otherwise related to the F8 Documents or the Subordinated Note Agreements prior to the Threshold Date.
Appears in 1 contract
Permitted Payments. Subject Second Lien Liabilities The members of the Group may:
(a) prior to the terms and conditions hereofSenior Secured Liabilities Discharge Date, CBI shall be permitted make Payments to make the Second Lien Creditors in respect of the relevant Second Lien Liabilities then due in accordance with the relevant Second Lien Finance Documents:
(i) regularly scheduled payments of principal and interest due and payable under if:
(A) the terms Payment is of:
(1) any of the Loan principal amount of the Second Lien Liabilities:
(I) in accordance with any provision contained in a Second Lien Finance Documents under which a Second Lien Creditor can be prepaid comparable and no more favourable than clause 11.1 (Illegality) of the Initial Senior Facilities Agreement between Castle Brands Inc. (provided that the relevant illegality does not arise as a result of action taken, omitted to be taken, by the applicable Second Lien Creditor or any Creditor Representative on its behalf);
(II) in accordance with any provision contained in a Second Lien Finance Document which is similar in meaning and effect to clause 11.6 (Right of cancellation and repayment in relation to a single Lender or Issuing Bank), of the lending parties named therein dated on or about August 7, 2013 Initial Senior Facilities Agreement;
(the “CBI August 2013 Subordinated Loan Agreement”III) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount not exceeding the amount payable in accordance with clause 11.4 (Voluntary Prepayment of Term Loans), and clause 12.3 (Disposal, Insurance, Recovery and Special Purpose Financing Proceeds), clause 12.4 (Listing) or clause 12.5 (Excess Cash Flow) of the Initial Senior Facilities Agreement (or any equivalent provision in any other Credit Facility) but which amounts have been waived by any Credit Facility Lender;
(IV) in an amount not exceeding an amount equal to One Million Two Hundred Fifty Thousand the aggregate of Retained Excess Cashflow, Excluded Recovery Proceeds, Excluded Disposal Proceeds, Excluded Insurance Proceeds and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) New Shareholder Injections provided that, in each case, such amount has first been offered in prepayment to the lending parties named therein Credit Facility Lenders and which prepayments the Credit Facility Lenders have waived or declined to accept (collectivelywith any such amounts waived or declined being first offered in prepayment to any Credit Facility Lender who accepted the initial prepayment offer before being paid to Second Lien Creditors), the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders extent such amount is not prohibited by the Senior Secured Debt Documents to be applied for this purpose;
(V) (only after the discharge in connection therewith (all such agreementsfull of the Senior Secured Liabilities), documents and instruments, together in accordance with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as provision contained in the “CBI August 2013 Subordinated Loan Documents”), as Second Lien Facility Agreement for the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notesmandatory prepayment, in whole or in part, or of the Second Lien Facility on the happening of specified events;
(2) any of the principal amount of the Second Lien Liabilities in an amount not exceeding the amount of Restricted Payments (as defined in the Initial Senior Facilities Agreement) permitted under clause 30 (Limitation on Restricted Payments) of the Initial Senior Facilities Agreement (and any other CBI August 2013 Subordinated Loan Documentsimilar or equivalent provision of any of the other Senior Secured Debt Documents) at such time to the extent such amount is not prohibited by the Senior Secured Debt Documents to be applied for this purpose;
(3) consent and/or waiver fees reasonably incurred by the relevant Debtor (acting in good faith) in respect of any amendment of, or consent or waiver relating to, any provision of a Second Lien Finance Document provided that such payment when expressed as a percentage of the principal amount of Second Lien Liabilities, does not exceed the amount of the consent and/or waiver fees paid to the Senior Secured Creditors whose consent was required in whole respect of the same matter, when expressed as a percentage of the principal amount of the Senior Secured Liabilities (or affected principal thereof);
(4) any amounts where the amount is outstanding as a result of the accrual of cash interest payable in partrespect of the Second Lien Liabilities during a period when a Second Lien Payment Stop Notice was outstanding (which has since expired);
(5) any amount of cash interest, for any reason, and tax gross-up or tax indemnity payments in accordance with the Second Lien Finance Documents;
(ii6) regularly scheduled payments the capitalisation of interest due and payable under or the terms issuance of a non-cash pay financial instrument evidencing the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued same which is subordinated to the “Purchasers” Senior Secured Liabilities pursuant to this Agreement on the same terms as the Second Lien Liabilities;
(the “2018 Subordinated Noteholders”7) executing the 2018 Subordinated any closing payment due pursuant to any purchase agreement (or equivalent) in respect of any Second Lien Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or arrangement or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are upfront fees due in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement respect of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Payments.Second Lien Facility Agreement; or
Appears in 1 contract
Sources: Intercreditor Agreement
Permitted Payments. Subject Notwithstanding the provisions of Section 7.2 hereof, until the giving by the Agent of a Blockage Notice to the terms Subordinated Lender, the Borrowers may pay to the Subordinated Lender, and conditions hereofthe Subordinated Lender may demand, CBI shall be accept and retain from the Borrowers, the following permitted to make payments on the Subordinated Lender Obligations and no other payments:
(ia) regularly scheduled periodic payments of principal non-cash interest accruing on the Subordinated Lender Obligations at the interest rates applicable thereto (which rate may include the “Default Rate of Interest” as such term is defined in the Subordinated Lender Loan Agreement), as and interest when the same become due and payable under the terms of the Subordinated Lender Documents, which shall be paid in kind and added to the outstanding principal amount of the notes evidencing the Subordinated Lender Obligations but which shall not be payable in cash (which, for the avoidance of doubt, may be made irrespective of whether a Senior Lenders Event of Default shall exist or whether a Blockage Notice shall have been given by the Agent);
(b) periodic payments of cash interest on the Subordinated Lender Obligations other than the Term Loan Agreement between Castle Brands Inc. and C Obligations at the lending parties named therein dated on or about August 7, 2013 interest rates applicable thereto (which rate may include the “CBI August 2013 Default Rate of Interest” as such term is defined in the Subordinated Lender Loan Agreement”) made at any time after the Agent shall have received the Credit Parties’ audited Consolidated Balance Sheet, statements of profit and loss, cash flow and reconciliation of surplus for the Promissory Notes dated on or about August 7Fiscal Year ending December 31, 2013 in an aggregate original principal amount equal 2006, together with the officer’s certificate with respect thereto, each as required to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or be delivered to the CBI August 2013 Agent pursuant to Section 7.8 of the Senior Lenders Loan Agreement; provided that each of the following conditions shall have first been satisfied with respect to each such payment of cash interest: (1) both immediately before, and immediately after giving effect to such cash interest payment, no Default and no Senior Lenders Event of Default has occurred and is then continuing or will immediately result therefrom; and (2) the Subordinated Noteholders Lender shall not have received a Blockage Notice from the Agent. Upon the delivery by the Subordinated Lender of a Blockage Notice to the Subordinated Lender, the subordination provisions of Section 7.2 shall govern and control, and no payments of cash interest on the Subordinated Lender Documents (other than as permitted by Section 7.5(a) hereof by a non-cash payment in kind) and no payments in cash of fees, costs, expenses, indemnification amounts and other amounts (other than interest) (other than as permitted by Section 7.5(c) hereof by a non-cash payment in kind) shall be made by the Borrowers, or demanded, accepted or retained by the Subordinated Lender, until the earlier to occur of the following:
(i) The Senior Lenders Event of Default giving rise to such Blockage Notice shall have been cured to the reasonable satisfaction of the Agent and the Senior Lenders, or waived in writing or shall have ceased to exist, and the Agent on behalf of the Senior Lenders shall have delivered to the Subordinated Lender a rescission of the Blockage Notice; or
(ii) All of the Senior Lenders Obligations shall have been paid and satisfied in full and the Agent and the Senior Lenders have no further obligation for the incurring of additional Senior Lenders Obligations;
(c) non-cash payment of fees, costs, expenses, indemnification amounts and other amounts (other than interest and principal) payable by a Credit Party pursuant to the Subordinated Lender Documents, payments of non-cash interest accruing on the Subordinated Lender Obligations, which shall be paid in kind and added to the outstanding principal amount of the Subordinated Lender Term Note B and which shall not be payable in cash (which, for the avoidance of doubt, may be made irrespective of whether a Senior Lenders Event of Default shall exist or whether a Blockage Notice shall have been given by the Agent); provided, however, the foregoing prohibition of the payment of fees, costs and expenses shall not apply to the payment in cash of the reasonable fees, costs and expenses (including reasonable attorneys’ fees and expenses) incurred by the Subordinated Lender in connection therewith (all such agreements, documents with the Second Amendment to LJH Financing Agreement and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as assignment and assumption of the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 by Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted PaymentsLender.
Appears in 1 contract
Sources: Intercreditor and Subordination Agreement (Timco Aviation Services Inc)
Permitted Payments. Subject Notwithstanding the foregoing provisions, but subject to the terms and conditions hereoflimitations set forth below, CBI until such time as Subordinated Creditor shall have received, or be permitted deemed to make (i) regularly scheduled payments of principal and interest due and payable under have received, written notice in accordance with the terms hereof from Sunrock or its agents of the Loan Agreement between Castle Brands Inc. occurrence of an Event of Default or Potential Default, Subordinated Creditor may accept and retain from Borrower payments in respect of the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) Debt to the lending parties named therein extent expressly set forth on Exhibit A hereto (collectively, the “CBI August 2013 Permitted Payments”); provided, however: (i) after giving effect to each such Permitted Payment and any other payments then permitted under Section 9.9 of the Loan Agreement, the Excess Availability shall be equal to, or greater than, $750,000.00; (ii) Permitted Payments shall include only payments in respect of the original amortization schedule, if any, of the stated principal amount of the Subordinated Noteholders”Debt as set forth in the instruments described on Exhibit A without regard to any future amendment of such instruments (unless such amendment shall delay or reduce the otherwise scheduled principal payments) and such other agreements, documents and instruments executed and/or delivered only to the CBI August 2013 extent permitted by Exhibit A; (iii) Permitted Payments shall not include any amounts due and owing by Borrower to Subordinated Noteholders Creditor in connection therewith respect of reimbursement obligations (all whether through contract, common law right of contribution or otherwise) related to the Letter of Credit or any increase in the stated principal amount of the Subordinated Debt as a result of any draw on the Letter of Credit; and (iv) to the extent any Permitted Payment is not permitted to be made when scheduled as a result of the foregoing conditions, such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, payment shall be collectively referred to herein as deferred until the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in partDebt. The original stated principal amount of the Subordinated Debt is hereby acknowledged and agreed to be as set forth on Exhibit A. From and after Subordinated Creditor’s receipt, or any other CBI August 2013 deemed receipt, of written notice of an Event of Default or Potential Default, Permitted Payments may not be accepted or retained by Subordinated Loan Document, in whole Creditor until all Events of Default and Potential Defaults shall have been cured or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distributionotherwise waived by Sunrock. Upon receipt, or other amount in repayment deemed receipt, of notice from Sunrock that all Events of Default and Potential Defaults have been cured or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documentsotherwise waived by Sunrock, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted PaymentsPayments may resume.
Appears in 1 contract
Permitted Payments. Subject to the terms and conditions hereof, CBI Borrower shall be permitted to make make:
(i) cash distributions to iGambit Inc. (“iGambit”) to fund (A) Borrower Stock Obligations, but not any extraordinary dividend, distribution, payment or other amount with respect to the Borrower Stock Obligations and whether mandatory, voluntary or otherwise under the terms of the Borrower Charter Documents, as the Borrower Charter Documents are in effect on the date of this Agreement, and as the Borrower Charter Documents may be amended, restated, extended or otherwise modified in accordance with the terms hereof (each, a “Permitted Stock Dividend”) and (B) cash Distributions by Borrower to iGambit of management fees and other amounts as compensation for services performed by iGambit, and for reimbursable costs and expenses incurred by iGambit in the ordinary course of performing services for Borrower (each, a “Permitted Management Payment”, and together with Permitted Stock Dividends, “Permitted iGambit Distributions”); and
(ii) cash Distributions by Borrower to ▇▇▇▇▇▇ ▇▇▇▇▇ in amounts equal to the regularly scheduled payments of principal and interest due and payable under the terms of a Promissory Note Effective Date and issued by Borrower to ▇▇▇▇▇▇ ▇▇▇▇▇ in the Loan Agreement between Castle Brands Inc. original principal amount of One Million and 00/100 Dollars ($1,000,000.00) pursuant to the lending parties named therein dated on or about August 7, 2013 terms of the Asset Purchase Documents (the “CBI August 2013 Subordinated Loan AgreementNote”) ), but not any Distribution, payment or other amount in prepayment of any obligations or liabilities of, under or with respect to the Subordinated Note, whether mandatory, voluntary or otherwise, or due to the acceleration of maturity thereof for any reason under the terms of the Subordinated Note or Asset Purchase Documents, as the Subordinated Note and the Promissory Notes dated Asset Purchase Documents are in effect on the date of this Agreement, and disregarding any amendment, modification, restatement or about August 7replacement of the Seller Note or the Asset Purchase Documents after the date of this Agreement (each, 2013 a “Subordinated Note Permitted Payment”); and
(iii) cash Distributions by Borrower to Seller of payments of the contingent earn-out Described in the Asset Purchase Agreement in an aggregate original principal amount equal to One Three Million Two Seven Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.003,750,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, based on Borrower’s achievement of certain revenue and financial targets for the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to IT Solutions Business” as described in the CBI August 2013 Subordinated Noteholders in connection therewith Asset Purchase Agreement (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan DocumentsEarnout Distributions”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, when and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest if due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Asset Purchase Agreement dated on Documents, but not any Distribution, payment or about October 21other amount in prepayment of any obligations or liabilities of, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on under or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued with respect to the “Purchasers” (Earnout Distributions, whether mandatory, voluntary or otherwise, or due to the “2018 Subordinated Noteholders”) executing acceleration of maturity thereof for any reason under the 2018 Subordinated Notes terms of the Asset Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Asset Purchase Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”Agreement, and disregarding any amendment, modification, restatement, extension restatement or replacement of any Junior Creditor Loan Document the Asset Purchase Documents after the date of this Agreement shall be disregarded for purposes of determining (each, a “Permitted PaymentsEarnout Distribution”).
Appears in 1 contract
Permitted Payments. Subject (a) So long as part of the Superior Indebtedness remains outstanding and until such time as the Superior Lender provides the Seller with written notice that a Default or Event of Default (as defined in the Credit Agreement) has occurred (a "Default Notice"), the Obligor may make and the Seller may receive payments of the Subordinated Obligations; provided, however, that the Seller shall not be entitled to receive such payments if after given effect to the payment a Default or Event of Default exist under the Credit Agreement. Upon the occurrence of an Event of Default, the Obligor may not make, and the Seller may not receive payments of the Subordinated Obligations. The Superior Lender, in its discretion, may issue a Default Notice with respect to each and every such Default or Event of Default that occurs, but shall not have the right to issue more than one Default Notice with respect to any particular Default or Event of Default; provided, however, that if a Default or Event of Default has been cured or waived (or deemed waived as provided below), but subsequently reoccurs, then a new Default Notice may be sent with respect thereto. In the event that all Defaults and Events of Default shall be cured or waived, then the Borrower may resume the making of payments otherwise permitted hereunder, subject to the terms hereof.
(b) Except as expressly set forth above, the Seller, prior to the final payment and conditions hereofsatisfaction in full in cash of the Superior Indebtedness and the termination of all financing arrangements between the credit parties and the Superior Lender in connection with the Credit Agreement (including letters of credit), CBI shall be permitted have no right to make enforce any payment with respect to the Subordinated Obligations, or to otherwise take any action against any Subordinated Obligations credit party or any of their respective assets in connection therewith.
(ic) regularly scheduled It is understood and agreed by the Seller that payments of principal and interest due and payable under the terms of the Loan Agreement between Castle Brands Inc. and the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 Obligations other than as expressly permitted in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) 2 shall not be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Paymentspermitted.
Appears in 1 contract
Permitted Payments. Subject to the terms and conditions hereof, CBI shall be permitted to make (i) regularly scheduled payments of principal and interest due and payable under 6.1 Notwithstanding the terms of the Loan Agreement between Castle Brands Inc. and the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, the Company hereby agrees that it shall not make (and will not permit any other Obligor to make), and each Subordinated Lender hereby agrees that it will not accept, any payment or distribution with respect to the Subordinated Indebtedness including any payment or distribution received through the exercise of any right of setoff, counterclaim or crossclaim, until the Senior Indebtedness is Finally Paid; provided that the Company may pay to the Subordinated Lender and the Subordinated Lender may accept:
(a) at any time prior to written notice of an Event of Default by the Senior Lender to the Subordinated Lender, any and all Subordinated Indebtedness whether required such payment is made in the ordinary course, through a Sub-Account, at maturity or permitted a pre-payment.
(b) at any time subsequent to an Event of Default, payments made pursuant to Section 8(a)(iii) or 6.1(b) hereof. The interest rate provided for with respect to the terms Subordinated Indebtedness may provide for a default interest rate of four percent (4%) per annum above the above stated rates, which stated rates may not be increased more than one percent (1%) per annum without the prior written consent of the CBI August 2013 Senior Lender. The charging of default interest and any increased interest rate permitted hereby shall not increase the cash payments permitted to be made to the Subordinated Lender pursuant to this Section 6.1 such additional interest shall accrue and compound quarterly or monthly as applicable. Notwithstanding the foregoing:
(i) If a Senior Payment Default has occurred, no payment or distribution shall be made by the Company (or any other Obligor) or accepted by any Subordinated Lender on the Subordinated Indebtedness until the earlier to occur of (x) twenty percent (20%) of the Senior Payment Defaults have been cured or waived or (y) the Senior Lender shall have received its Initial Share.
(ii) If a Senior Covenant Default shall have occurred, no payment or distribution on the Subordinated Indebtedness shall be made by the Company (or any other Obligor) or accepted by any Subordinated Lender on the Subordinated Indebtedness for a period (a “Blockage Period”) of time commencing upon delivery by the Senior Lender to the Company and Subordinated Lender of written notice stating that a Senior Covenant Default exists or would be created by the making of such payment (the “Blockage Notice”) and continuing until the earlier to occur of (A) 30 days from the date of delivery of the Blockage Notice, or (B) the date on which all Senior Covenant Defaults have been cured or waived. There shall be no more than five (5) Blockage Periods during the term of Senior Indebtedness.
(iii) Upon the cure or waiver of any Senior Payment Default or the expiration of any Blockage Period, the Company may make, and the Subordinated Lender may receive, prospective payments of the Subordinated Indebtedness (on a non-accelerated basis) to the extent, if any, such payment would be permitted under this Section 6. All accrued amounts not paid during any Blockage Period shall accrue and compound by adding the same to principal.
(iv) Nothing contained herein shall prohibit the Subordinated Lender from receiving, or drawing on, its Credit Enhancement.
6.2 No Senior Payment Default or Senior Covenant Default shall be deemed to have been waived for purposes of this Section 6.2 unless and until the Company shall have received a written waiver from the Senior Lender.
6.3 If Subordinated Lender receives payment pursuant to Section 6, such payment shall be deemed to constitute a representation by Company that no Event of Default exists and that such payment is otherwise permitted by such Section 6.
6.4 Notwithstanding any other provision of this Agreement, the Senior Loan Documents or the Subordinated Loan Documents to the contrary, the aggregate number of Blockage Period days shall not exceed 60 days in any 365-day period.
6.5 No Senior Covenant Default existing on the date any Blockage Notice is given shall, unless the same shall have ceased to exist for a period of at least thirty (30) consecutive days, be used as a basis for any subsequent Blockage Notice; provided that successive Senior Covenant Defaults resulting from the failure to comply with a particular covenant for separate measurement periods shall constitute separate Senior Covenant Defaults not subject to the foregoing limitation.
6.6 The failure of the Company to make any payment with respect to the Subordinated Indebtedness by reason of the operation of this Section 6 shall not be construed as preventing the occurrence of a default under the Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement.
6.7 The Company shall not be prohibited from making, and the other agreementsSubordinated Lender shall not be prohibited from receiving, documents and instruments executed and/or delivered to CBI any payments in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment respect of the 2018 Subordinated Notes or under the 2018 Subordinated Debt DocumentsIndebtedness in kind, whether required or permitted pursuant by adding such payment to principal provided that no interest accruing on any such payments in kind added to principal may be paid in cash prior to the terms Payment in Full of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the all Senior Indebtedness.
6.8 The provisions of this Section 8.6(a) 6 shall not be referred applicable to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement the extent that the provisions of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted PaymentsSection 8 are applicable.
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Sources: Subordination and Intercreditor Agreement (CS Financing CORP)
Permitted Payments. Subject to the terms and conditions hereof, CBI shall be permitted to make (i) regularly scheduled payments Subject to (ii) and (iii) below, the Borrower may pay a Senior Subordinated Liability and the Senior Subordinated Agent may receive for the benefit of principal the Senior Subordinated Lenders payment of a Senior Subordinated Liability to the extent that the payment or receipt is a payment or receipt of interest, fees and interest due expenses, and/or a payment, or receipt in respect of tax gross-ups and payable other indemnities under the Senior Subordinated Facility Agreement (except to the extent that any such indemnity payment or receipt would constitute a payment or receipt of principal) or a payment made pursuant to Clause 17 of the Senior Subordinated Facility Agreement and in any case, is made in accordance with the terms of the Loan Agreement between Castle Brands Inc. and Senior Subordinated Facility Documents as at the lending parties named therein dated on date hereof (or about August 7, 2013 as amended otherwise than in breach of Clause 4).
(the “CBI August 2013 Subordinated Loan Agreement”ii) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars If:
($1,250,000.00a) issued by CBI (“CBI August 2013 Subordinated Notes”) a Senior Default has occurred due to the lending parties named therein non-payment of principal, interest fees, expenses, costs or other amounts (collectivelyother than in respect of a Postponed Senior Liability) (a "Senior Payment Default") the Senior Agent shall promptly notify the Senior Subordinated Agent thereof and thereafter the Senior Agent, acting on the “CBI August 2013 Subordinated Noteholders”instructions of the Majority Senior Lenders, may (and if instructed by the Majority Senior Lenders, shall) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith serve a written notice (all such agreements, documents and instruments, together with any amendmentsnotice under Clause 9. 1 (iii), restatementsa "Stop Notice") on the Senior Subordinated Agent and the Borrower specifying, extensions such Senior Payment Default and suspending permitted payments; or
(b) the Senior Agent has declared the Senior Liabilities due and payable or otherwise accelerated payment of the Senior Liabilities, then (following service of such Stop Notice or the making of such declaration or acceleration) no payments may be made in respect of any Senior Subordinated Liability until either:
(1) the Senior Payment Default has been remedied or waived by or on behalf of the Majority Senior Lenders in writing or has ceased to exist; or
(2) the Senior Agent, acting on the instructions of the Majority Senior Lenders, has by notice in writing to the Senior Subordinated Agent and the Borrower cancelled the Stop Notice; or
(3) the Senior Agent, acting on the instructions of the Majority Senior Lenders, has cancelled or withdrawn its declaration or other modifications premature acceleration.
(iii) If any other Senior Default has occurred which the Senior Agent (acting on the instructions of the Majority Senior Lenders) certifies in the relevant notice to be material in the opinion of the Majority Senior Lenders, for a period of 180 days from receipt by the Senior Subordinated Agent of a written notice in respect thereof, no payments may be made from time in respect of any Senior Subordinated Liability unless:
(a) such Senior Default has been remedied or waived by or on behalf of the Majority Senior Lenders in writing or has ceased to timeexist; or
(b) the Senior Agent, shall acting on the instructions of the Majority Senior Lenders, has by notice in writing to the Senior Subordinated Agent and the Borrower cancelled the Stop Notice; or
(c) the Senior Discharge Date has occurred.
(iv) No more than one Stop Notice in relation to any Senior Default other than a Senior Payment Default may be collectively referred served in any consecutive 365 day period and no Stop Notice may be delivered in relation to herein as any Senior Default (other than a Senior Payment Default) more than 30 days after the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect Senior Agent becomes actually aware of such Senior Default.
(v) No Senior Default (other than a Senior Payment Default) that existed or was continuing on the date hereofof service of any Stop Notice will be, and voluntary prepayments or can be made, the basis for the service of principal and interest permitted a subsequent Stop Notice, unless such default has been cured or waived for a period of not less than 90 consecutive days subsequent to the date of service of the first Stop Notice.
9.2 The failure to make a payment under the terms Senior Subordinated Facility Documents by reason of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes provision of this Agreement shall not be construed as preventing the CBI August 2013 occurrence of a Senior Subordinated Noteholders Default and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(aClause 9 shall not prevent the Senior Subordinated Agent and/or the Senior Subordinated Lenders taking any action permitted under Clause 11.
9.3 It is expressly agreed as between the Borrower and the Senior Subordinated Lenders that the obligation to make any payment under the Senior Subordinated Facility Documents not permitted to be paid under this Clause shall continue and that default interest (or, insofar as it relates to unpaid interest, lump sum damages) shall accrue thereon in accordance with the provisions of the Senior Subordinated Facility Documents. Any interest (or lump sum damages) so accrued may only be referred to paid in accordance with the provisions of this Clause 9.
9.4 If at any time whilst the Senior Liabilities or, after the Senior Discharge Date, the Senior Subordinated Liabilities are or may be outstanding:
(i) any Senior Subordinated Lender receives a payment or distribution in cash or in kind of, or on account of, any of the Senior Subordinated Liabilities not permitted by Clause 9. 1, as a “Permitted Payment”the case may be, and or made in accordance with Clause 12; or
(ii) the Borrower makes any amendment, modification, restatement, extension payment or replacement distribution in cash or in kind on account of the purchase or other acquisition of any Junior Creditor Loan Document after of the date of this Agreement shall be disregarded Senior Subordinated Liabilities, the receiving Senior Subordinated Lender will forthwith pay any and all such amounts to the Security Trustee (Treuhander) for purposes of determining Permitted Paymentsapplication in accordance with Clause 12.
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Permitted Payments. Subject to the terms and conditions hereof, CBI shall be permitted to make make:
(i) regularly scheduled concurrently with the Effective Date principal payments in an aggregate amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) plus aggregate accrued and unpaid interest of principal Twenty Three Thousand Five Hundred Eight and interest due and payable under the terms 00/100 Dollars ($23,508.00) in full repayment of the Loan Agreement between Castle Brands Inc. and the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and ; and
(ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. .
(iii) For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Payments.
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Permitted Payments. Subject Senior Creditor hereby agrees that, notwithstanding anything to the terms contrary contained in Section 2.1 hereof,
(a) unless and conditions hereof, CBI shall be permitted until Senior Creditor sends written notice to make Junior Creditor of the occurrence and continuance of an Event of Default or Incipient Default under the Senior Creditor Agreements:
(i) Debtor may make and Junior Creditor may receive and retain from Debtor, from time to time payments of principal to Junior Creditor in respect of the Junior Debt; provided, that, as to any such payment, each of the following conditions shall have been satisfied as determined by Senior Creditor: (A) Senior Creditor shall have received not less than five (5) Banking Days' prior written notice of the intention of Debtors to make such payment, which written notice shall set forth the amount of the payment intended to be made, the then current outstanding amount of principal and such other information with respect thereto as Senior Creditor may reasonably request, (B) as of the date of and after giving effect to any such payment, the Excess Availability on such date and for each of the immediately preceding thirty (30) consecutive days shall have been not less than $5,000,000; and
(ii) Debtor may make and Junior Creditor may receive and retain from Debtor regularly scheduled payments of principal interest and interest due and payable under of a monthly fee in the terms amount of $79,200 as provided by the Loan Agreement between Castle Brands Inc. and the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein Junior Creditor Agreements as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof; and
(b) Debtor may make, and voluntary prepayments of principal Junior Creditor may receive and interest permitted under the terms retain, payments by Debtor to Junior Creditor of the CBI August 2013 Subordinated Loan Documents Junior Debt solely out of cash proceeds pursuant to a rights offering by Hanover Direct, Inc., Harvard Brands, Inc. or erizon, inc. or any other equity offering(s) or equity private placement(s) of capital stock of Hanover Direct, Inc, Hanover Brands, Inc. or erizon, inc. and Junior Creditor may convert the then outstanding amount of Junior Debt for capital stock of Hanover Direct, Inc. or Hanover Brands or erizon, inc.; provided, that, (i) Senior Creditor has received not less than fifteen (15) Banking Days prior written notice from Debtor of the intention to make such payment out of cash proceeds of such rights offering or other equity offering or such conversion of the Junior Debt to capital stock, (ii) such capital stock consists of ordinary common stock as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereofhereof or of other capital shares if consented to by Senior Creditor, but which consent shall not be unreasonably withheld in Senior Creditor's good faith judgment. To the extent any mandatory, voluntary, discretionary such cash proceeds of any such equity offering or optional payment, distribution, or other conversion of Junior Debt permitted hereby reduces the amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted any commitment to advance funds pursuant to the terms Junior Creditor Agreements, any such net cash proceeds or conversion shall not also reduce the amount of the CBI August 2013 Subordinated Loan Documents, due any commitment to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted advance funds pursuant to the terms of Richemont $25,000,000 Credit Agreements as such term is defined in the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Senior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted PaymentsAgreements.
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Permitted Payments. Subject to the terms and conditions hereof, CBI shall be permitted to make (i) regularly scheduled payments of principal and interest due and payable required under the terms of the Loan Agreement between Castle Brands Inc. and the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) date hereof and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated NoteholdersJunior Creditor”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders Junior Creditor in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Junior Creditor Loan Documents”), ” as the CBI August 2013 Subordinated Junior Creditor Loan Documents are in effect on the date hereof, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Junior Creditor Loan Documents as the CBI August 2013 Subordinated Junior Creditor Loan Documents are in effect on the date hereofhereof (each, a “Permitted Payment”), but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan DocumentsJunior Obligations, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Junior Creditor Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt DocumentJunior Obligations, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any Any amendment, modification, restatement, extension or replacement of any the Junior Creditor Loan Document Documents after the date of this Agreement shall be disregarded for purposes of determining Permitted Payments.
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Permitted Payments. Subject (a) Notwithstanding anything to the terms and conditions hereofcontrary set forth herein, CBI shall be permitted to make (i) regularly so long as (x) no Payment Default exists, and so long as (y) the Subordinated Creditors have not received a Blockage Notice with respect to any other Event of Default, the Credit Parties may, from time to time, pay or cause to be paid to the Subordinated Creditors and the Subordinated Creditors may accept and retain scheduled payments of principal and of interest due on the Subordinated Indebtedness in the amounts and payable on the dates required to be paid by the Credit Parties under the terms of the Loan Agreement between Castle Brands Inc. Subordinated Debt Documents, as originally executed and the lending parties named therein dated on delivered or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made as amended from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereoftime without violation of Section 6, and voluntary (ii) so long as (x) no Payment Default exists, (y) the Subordinated Creditors have not received a Blockage Notice with respect to any other Event of Default and (z) no Default or Event of Default shall result from the making of any such payment and such payment is made to the extent and only to the extent permitted under Schedule A to this Agreement, the Credit Parties may make prepayments of principal and interest in respect of the Subordinated Indebtedness. In addition to payments permitted under the terms first sentence of this Section 2.6(a), if the then holders of the CBI August 2013 Senior Indebtedness shall not have accelerated the payment of the Senior Indebtedness within 180 days after receipt by the Subordinated Loan Documents as Creditors of a Blockage Notice, then after the CBI August 2013 expiration of such 180-day period (or if during said 180-day period such Event of Default is cured by the Credit Parties or is waived by the then holders of the Senior Indebtedness, then after the time of such cure or waiver), and if no Payment Default exists, the Credit Parties may from time to time pay or cause to be paid to the Subordinated Loan Documents are in effect Creditors and the Subordinated Creditors may accept and retain payments of interest on the date hereof, but Subordinated Indebtedness (not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment excess of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable required to be made by the Credit Parties under the terms Subordinated Debt Documents, as originally executed and delivered or as amended from time to time without violation of Section 6 hereof, including any interest payments which were not paid as a result of such Blockage Notice or the prior existence of a Payment Default), provided, that if thereafter any Payment Default occurs or any other -------- Blockage Notice is sent, then the first sentence of this Section 2.6(a) shall again apply. If the Subordinated Creditors or any other holder of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (Indebtedness receives payment from the “2018 Subordinated Notes Purchase Agreement”Credit Parties pursuant to the first sentence of this Section 2.6(a), such payment shall be deemed to constitute a representation of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued Credit Parties to the “Purchasers” (Senior Creditor and to the “2018 Subordinated Noteholders”) executing Creditors that no Event of Default exists, that such payment is permitted to be paid by the 2018 Subordinated Notes Purchase Credit Parties under this Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, Subordinated Creditors shall be collectively referred entitled to herein as thekeep and retain such payment. Notwithstanding anything which may be to the contrary herein, the “2018 Subordinated Debt Documents”), as Senior Creditor shall not be entitled to block payments pursuant to a Blockage Notice delivered hereunder for more than 180 days during any 360 day period or send more than three (3) Blockage Notices during the 2018 Subordinated Debt Documents are in effect on the date term of this Agreement.
(b) For purposes hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Payments.terms:
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Permitted Payments. Subject Notwithstanding anything to the terms and conditions contrary contained in Section 3.1 hereof, CBI shall be permitted to Debtors may make and Supplemental Loan Lenders may receive and retain from Debtors: (ia) regularly scheduled payments of principal principal, interest and interest due and payable under fees, if any, in respect of the Supplemental Loan Debt in accordance with the terms of the Supplemental Loan Agreement between Castle Brands Inc. and the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary ; (b) optional prepayments of principal and interest permitted under Supplemental Loan Debt in accordance with the terms of the CBI August 2013 Subordinated Supplemental Loan Documents Agreement; provided that, Borrowers may not repay any Reborrowable Loans (as defined in the CBI August 2013 Subordinated Supplemental Loan Documents are Agreement) unless (i) no Default or Event of Default shall have occurred and be continuing prior to, and after giving effect to, such repayment, (ii) the aggregate amount of Reborrowable Loans so repaid prior to the Six Month Termination Date (as defined in effect on the date hereof, but Supplemental Loan Agreement) shall not any mandatory, voluntary, discretionary or optional payment, distribution, or other exceed the amount in repayment or prepayment by which the Borrowers have reduced the aggregate face amount of all Letters of Credit outstanding under the Revolving Loan Agreement as of the CBI August 2013 Subordinated Notes or Closing Date (as defined in the Revolving Loan Agreement, (iii) after giving effect to any such repayment, the outstanding amount of Loans under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reasonSupplemental Real Estate Facility shall equal at least $10,000,000, and (iiiv) regularly scheduled payments after giving effect to any such repayment, Excess Revolver Availability (as defined in the Revolving Loan Agreement) is equal to at least $28,000,000; and provided, further, that Borrowers may not prepay Supplemental Loan Debt unless both before and after giving effect to such prepayment, average daily Excess Revolver Availability (as defined in the Revolving Loan Agreement) for the thirty (30) day period immediately preceding such payment, and immediately on the day after such payment, equals at least $65,000,000 on a pro forma basis after giving effect to such proposed payment; (c) mandatory prepayments of principal, interest due and payable fees, if any, in respect of the Supplemental Loan Debt with the net cash proceeds from the sale or other disposition of Supplemental Loan Priority Collateral as set forth in Section 2.8 hereof; and (d) prepayments of principal, interest and fees, if any, from the proceeds of Collateral after the payment in full of the Revolving Loan Debt (other than the Term Loan as defined under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Revolving Loan Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Payments.
Appears in 1 contract
Sources: Intercreditor and Subordination Agreement (Penn Traffic Co)
Permitted Payments. (i) Subject to the terms and conditions hereofother provisions of this Section 3(c), CBI the Debtor shall be permitted to make (i) regularly scheduled payments make, and the Subordinated Creditors shall be permitted to accept from the Debtor, one or more prepayments of principal and interest due and payable under the terms of the Loan Agreement between Castle Brands Inc. and Subordinated Debt, so long as (A) the lending parties named therein dated on or about August 7, 2013 (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or Debtor has delivered to the CBI August 2013 Subordinated Noteholders Bank evidence satisfactory to the Bank, in connection therewith its sole and absolute discretion, that that prepayment is being funded solely with amounts received in collection of accounts receivable from the 2016 Walmart Promotional Program (all such agreementswhich evidence might include, documents but will not necessarily be limited to, invoice documentation and instrumentsproof of payment remittance from Walmart), together (B) that prepayment is funded solely with any amendmentsamounts received in collection of accounts receivable from the 2016 Walmart Promotional Program, restatementsand (C) that prepayment is made on or before February 28, extensions or 2017.
(ii) Subject to the other modifications made from time to timeprovisions of this Section 3(c), the Debtor shall be collectively referred permitted to herein make, and the Subordinated Creditors shall be permitted to accept from the Debtor, one or more prepayments of accrued interest on the Subordinated Debt, so long as (A) the “CBI August 2013 Subordinated Loan Documents”Debtor has delivered to the Bank evidence satisfactory to the Bank, in its sole and absolute discretion, that that prepayment is being funded solely with amounts received in collection of accounts receivable from the 2016 Walmart Promotional Program (which evidence might include, but will not necessarily be limited to, invoice documentation and proof of payment remittance from Walmart), as (B) that prepayment is funded solely with amounts received in collection of accounts receivable from the CBI August 2013 2016 Walmart Promotional Program, (C) that prepayment is made on or before February 28, 2017, and (D) the outstanding principal balance of the Subordinated Loan Documents are Debt has been paid in effect full in cash.
(iii) The Debtor shall not be permitted to make, and the Subordinated Creditors shall not be permitted to accept from the Debtor, payments in cash of any accrued interest on the date hereofSubordinated Debt other than in accordance with Section 3(c)(ii), but interest may accrue and continue to accrue on the Subordinated Debt in accordance with the Subordinated Debt Instruments. No such accrued interest may be capitalized or otherwise added to the outstanding principal balance of the Subordinated Debt, and voluntary prepayments of principal and no such accrued interest permitted may itself bear interest under the terms Subordinated Debt Instruments.
(iv) Until the M▇▇▇▇▇▇ Bridge Repayment is paid in full in cash, the Debtor shall, in lieu of making any prepayment of the CBI August 2013 Subordinated Loan Documents Debt evidenced by the 2016 CTI–M▇▇▇▇▇▇ Note that is permitted to be made in accordance with Section 3(c)(i) or 3(c)(ii), pay to the Bank the amount of that permitted prepayment as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment a payment or prepayment of the CBI August 2013 Subordinated Notes M▇▇▇▇▇▇ Bridge Repayment, and any such payment or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant prepayment paid to the terms Bank will be deemed a prepayment, in like amount, of the CBI August 2013 Subordinated Loan DocumentsDebt evidenced by the 2016 CTI–M▇▇▇▇▇▇ Note.
(v) Until the S▇▇▇▇▇ Bridge Repayment is paid in full in cash, due the Debtor shall, in lieu of making any prepayment of the Subordinated Debt evidenced by the 2016 CTI–S▇▇▇▇▇ Note that is permitted to be made in accordance with Section 3(c)(i) or 3(c)(ii), pay to the acceleration Bank the amount of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein that permitted prepayment as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment a payment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”S▇▇▇▇▇ Bridge Repayment, and any amendmentsuch payment or prepayment paid to the Bank will be deemed a prepayment, modificationin like amount, restatementof the Subordinated Debt evidenced by the 2016 CTI–S▇▇▇▇▇ Note.
(vi) Unless otherwise agreed in writing by each Subordinated Creditor, extension the Debtor, and the Bank, all prepayments of the Subordinated Debt permitted to be made in accordance Section 3(c)(i) or replacement 3(c)(ii) (and all payments or prepayments of the M▇▇▇▇▇▇ Bridge Repayment or the S▇▇▇▇▇ Bridge Repayment to be made in lieu of any Junior Creditor Loan Document after such permitted prepayment in accordance with Section 3(c)(iv) or 3(c)(v), respectively) must be made ratably to the date Subordinated Creditors (or to the Bank, as applicable) based on the outstanding principal balance of this Agreement shall be disregarded for purposes of determining Permitted Paymentsthe Subordinated Debt owing from the Debtor to each Subordinated Creditor.
Appears in 1 contract
Permitted Payments. Subject Unsecured Convertible Notes Liabilities The Issuer may:
(a) prior to the terms and conditions hereof, CBI shall be permitted to make Final Discharge Date:
(i) regularly scheduled payments make Payments to the Unsecured Convertible Noteholders in respect of principal the Unsecured Convertible Notes Liabilities in accordance with the Unsecured Convertible Notes Documents (as may be amended in accordance with the terms of this Agreement and interest the relevant Unsecured Convertible Notes Documents) provided the Payment is not otherwise prohibited by the Secured Documents (provided (in each case) that any such prohibitions in any Secured Documents shall not be materially more restrictive than the prohibitions contained in the Bonds Terms and Conditions and the Original Super Senior RCF (in each case in its original form));
(ii) make Payments of Creditor Representative Amounts due and payable to the Creditor Representative(s) in respect of the Unsecured Convertible Notes Liabilities, provided the Payment is not otherwise prohibited by the Secured Documents (provided that any such prohibitions in any Secured Documents shall not be materially more restrictive than the prohibitions contained in the Bonds Terms and Conditions and the Original Super Senior RCF (in each case in its original form)); or
(iii) make Payments to the Unsecured Convertible Noteholders in respect of the Unsecured Convertible Notes Liabilities only if the Super Senior Representative and the Senior Representative have given their prior consent to that Payment being made.
(b) On or after the Final Discharge Date, make Payments to the Unsecured Convertible Noteholders in respect of the Unsecured Convertible Notes Liabilities in accordance with the Unsecured Convertible Notes Documents (as may be amended in accordance with the terms of this Agreement and the relevant Unsecured Convertible Notes Documents).
(c) The Permitted Unsecured Convertible Notes Payments shall be considered "Permitted Payments" for all purposes under the terms of the Loan Agreement between Castle Brands Inc. and the lending parties named therein dated on or about August 7, 2013 this Agreement.
(the “CBI August 2013 Subordinated Loan Agreement”d) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) Notwithstanding anything to the lending parties named therein (collectivelycontrary in this Clause 9.7, it is understood and agreed that no Payments of Unsecured Convertible Notes Liabilities are permitted by the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein Secured Documents as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments provided that, for the avoidance of principal and doubt, the foregoing does not prohibit (i) the payment of accrued interest permitted under by way of capitalisation or the terms accrual of "paid-in-kind" interest thereon, (ii) Payments of Unsecured Convertible Notes Liabilities in connection with a conversion of the CBI August 2013 Subordinated Loan Documents as Unsecured Convertible Notes (however and for the CBI August 2013 Subordinated Loan Documents are in effect on the date hereofavoidance of doubt, but not including any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reasoncash Payments), and (iiiii) regularly scheduled payments Payments of interest due and payable under Creditor Representative Amounts incurred in the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Paymentsordinary course.
Appears in 1 contract
Permitted Payments. Subject to the terms and conditions hereof, CBI shall be permitted to make (ia) regularly scheduled payments of principal and interest due and payable under Notwithstanding the terms of the Loan Agreement between Castle Brands Inc. Documents, each Borrower hereby agrees that it shall not make (and will not permit any other Loan Party to make), and each Subordinated Lender hereby agrees that it will not accept, any payment or distribution with respect to the Subordinated Indebtedness including any payment or distribution received through the exercise of any right of setoff, counterclaim or crossclaim, until the Senior Indebtedness is Finally Paid; provided that any Borrower may make to the Subordinated Lenders and the lending parties named therein dated Subordinated Lenders may accept (1) subject to the limitation set forth in clause (i) below, payments of principal of, interest on or about August 7, 2013 (and other amounts payable with respect thereto from the “CBI August 2013 proceeds of an issuance of Capital Securities and Subordinated Loan Agreement”Debt permitted by Section 11.1(g) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.002) issued by CBI (“CBI August 2013 Subordinated Notes”) subject to the lending parties named therein (collectivelyfollowing limitations, any scheduled payments in respect of interest on, and payments in respect of reasonable fees of professionals and expenses payable with respect to, the “CBI August 2013 Subordinated Noteholders”) Indebtedness, all on a non-accelerated basis and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together accordance with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments of principal and interest permitted under the terms of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents:
(i) If a Senior Payment Default has occurred, whether required no payment or permitted pursuant to the terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, distribution shall be made by any Borrower (or any other CBI August 2013 Loan Party) or accepted by any Subordinated Loan Document, in whole Lender on the Subordinated Indebtedness until the earlier to occur of (x) the date on which all Senior Payment Defaults have been cured or in part, for any reason, and waived or (y) Final Payment of all the Senior Indebtedness.
(ii) regularly scheduled payments If a Senior Covenant Default shall have occurred, no payment or distribution on the Subordinated Indebtedness shall be made by any Borrower (or any other Loan Party) or accepted by any Subordinated Lender on the Subordinated Indebtedness for a period (a “Blockage Period”) of interest due time commencing upon delivery by the Senior Agent to any Borrower and payable under Subordinated Lenders of written notice stating that a Senior Covenant Default exists or would be created by the terms making of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 such payment (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated NotesBlockage Notice”) and issued continuing until the earlier to occur of (A) 90 days from the “Purchasers” date of delivery of the Blockage Notice, or (B) the “2018 Subordinated Noteholders”date on which all Senior Covenant Defaults have been cured or waived.
(iii) executing Upon the 2018 Subordinated Notes Purchase Agreementcure or waiver of any Senior Payment Default or the expiration of any Blockage Period, the Borrowers may make, and the other agreementsSubordinated Lenders may receive, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment payments of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant Indebtedness to the terms of the 2018 Subordinated Debt Documentsextent, due to the acceleration of maturity of 2018 Subordinated Notesif any, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall such payment would be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of under this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Payments15.3.
Appears in 1 contract
Sources: Credit Agreement (Epiq Systems Inc)
Permitted Payments. Subject Until such time as the Senior Debt is paid and performed in full and the Senior Lenders have no further commitments to extend credit to Borrower under the Senior Documents, Subordinated Creditor shall not receive or accept any payment from Borrower or any Guarantor with respect to the Subordinated Obligation without the prior written consent of Senior Agent; provided that, so long as Senior Agent has not delivered written notice to each of the Borrower and the Subordinated Creditor (a "BLOCKAGE NOTICE") that a "Default", "Potential Default", or Borrowing Base Deficiency (as each such term is defined in the Credit Agreement) exists (or would arise after giving effect to any such payment) under the Senior Debt or under the Senior Documents, Borrower may pay, and Subordinated Creditor may accept (i) payments consisting of accrued and unpaid interest owed under the Subordinated Loan Agreement (the "ACCRUED SUBORDINATED INTEREST"); (ii) principal payments on any outstanding loans made by Subordinated Creditor under the Subordinated Loan Agreement in an amount up to, and as a direct offset against, the sale price owed by Subordinated Creditor to Borrower for any Option Interest in the Potash Field (contemplated to be acquired by Borrower from Greka Energy, Inc.) in Plaquemines Parish, Louisiana if the closing of such acquisition by the Borrower is upon terms and conditions hereofconsistent with those previously disclosed to Senior Agent and occurs before April 30, CBI shall be permitted 2002; (iii) principal payments on any outstanding loans made by Subordinated Creditor under the Subordinated Loan Agreement to make finance the acquisition by Borrower of oil and gas properties in the State of Louisiana solely in an amount up to, and as a direct offset against, the sale price owed by Subordinated Creditor to Borrower for any sale to Subordinated Creditor of an Option Interest in such oil and gas properties which is consummated within ten (i10) regularly scheduled days of such acquisition by Borrower; and (iv) other payments of principal and interest due and payable on any outstanding loans made by Subordinated Creditor under the terms Subordinated Loan Agreement (including, without limitation, any such payments made or deemed made in respect of the Loan Agreement between Castle Brands Inc. and sale by Borrower of any Option Interests to Subordinated Creditor) so long as, in the lending parties named therein dated on or about August 7, 2013 case of this clause (the “CBI August 2013 Subordinated Loan Agreement”) and the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectivelyiv), the “CBI August 2013 Subordinated Noteholders”) and "Committed Usage" (as such other agreements, documents and instruments executed and/or delivered to term is defined in the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein Credit Agreement as the “CBI August 2013 Subordinated Loan Documents”), as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary prepayments of ) does not exceed (or would not exceed after giving effect to any such principal and interest permitted under the terms payment) eighty percent (80%) of the CBI August 2013 Subordinated Loan Documents as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment lesser of the CBI August 2013 Subordinated Notes "Commitments" or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to the then current "Borrowing Base" (as each of such terms of the CBI August 2013 Subordinated Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount in repayment or prepayment of the 2018 Subordinated Notes or under the 2018 Subordinated Debt Documents, whether required or permitted pursuant to the terms of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as the “Junior Creditors”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment permitted pursuant to the provisions of this Section 8.6(a) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement of any Junior Creditor Loan Document after the date of this Agreement shall be disregarded for purposes of determining Permitted Payments.is
Appears in 1 contract
Permitted Payments. Subject (a) Senior Creditor Agent and Lenders hereby agree that, notwithstanding anything to the terms contrary contained in Section 3.1, so long as no Blockage Period exists, Obligors may make and conditions hereof, CBI shall be permitted to make Junior Creditor may receive and retain from Obligors (i) regularly scheduled non-cash payments of principal and interest due and payable under in respect of the Junior Debt in accordance with the terms of the Junior Loan Agreement between Castle Brands Inc. and as in effect on the lending parties named therein dated on or about August 7, 2013 (date hereof in the “CBI August 2013 Subordinated Loan Agreement”) and form of additional Junior Debt having the Promissory Notes dated on or about August 7, 2013 in an aggregate original principal amount equal to One Million Two Hundred Fifty Thousand and 00/100 Dollars ($1,250,000.00) issued by CBI (“CBI August 2013 Subordinated Notes”) to the lending parties named therein (collectively, the “CBI August 2013 Subordinated Noteholders”) and such other agreements, documents and instruments executed and/or delivered to the CBI August 2013 Subordinated Noteholders in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein same terms as the “CBI August 2013 Subordinated existing Junior Debt evidenced by the Junior Loan Documents”)Agreement that are outstanding on the date hereof, (ii) regularly scheduled mandatory payments of cash interest in respect of the Junior Debt in accordance with the terms of the Junior Loan Agreement as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, and voluntary (iii) mandatory prepayments of principal and interest permitted under in respect of the Junior Debt in accordance with the terms of the CBI August 2013 Subordinated Junior Loan Documents Agreement as the CBI August 2013 Subordinated Loan Documents are in effect on the date hereof, but not any mandatory, voluntary, discretionary or optional payment, distribution, or other amount (iv) regularly scheduled payment of fees in repayment or prepayment respect of the CBI August 2013 Subordinated Notes or under the CBI August 2013 Subordinated Loan Documents, whether required or permitted pursuant to Junior Debt in accordance with the terms of the CBI August 2013 Subordinated Junior Loan Documents, due to the acceleration of maturity of the CBI August 2013 Subordinated Notes, in whole or in part, or any other CBI August 2013 Subordinated Loan Document, in whole or in part, for any reason, and (ii) regularly scheduled payments of interest due and payable under the terms of the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 Purchase Agreement dated on or about October 21, 2013 (the “2018 Subordinated Notes Purchase Agreement”), the Castle Brands Inc. 5% Subordinated Convertible Notes due 2018 dated on or about October 21, 2013 (collectively, the “2018 Subordinated Notes”) and issued to the “Purchasers” (the “2018 Subordinated Noteholders”) executing the 2018 Subordinated Notes Purchase Agreement, and the other agreements, documents and instruments executed and/or delivered to CBI in connection therewith (all such agreements, documents and instruments, together with any amendments, restatements, extensions or other modifications made from time to time, shall be collectively referred to herein as the, the “2018 Subordinated Debt Documents”), as the 2018 Subordinated Debt Documents are in effect on the date hereof, but not hereof and (v) the payment in full of all outstanding Junior Debt on the Junior Debt Stated Maturity Date; provided that
(x) as to any mandatory, voluntary, discretionary or optional payment, distribution, or other amount payment of interest in repayment or prepayment respect of the 2018 Subordinated Notes or under the 2018 Subordinated Junior Debt Documents, whether required or permitted pursuant to the terms based upon an interest rate of the 2018 Subordinated Debt Documents, due to the acceleration of maturity of 2018 Subordinated Notes, in whole or in part, or any other 2018 Subordinated Debt Document, in whole or in part, for any reason. For purposes of this Agreement the CBI August 2013 Subordinated Noteholders and the 2018 Subordinated Noteholders shall be collectively referred to as 10% per annum (the “Junior CreditorsStated Rate”, the CBI August 2013 Subordinated Loan Documents and the 2018 Subordinated Debt Documents shall be referred to as the “Junior Creditor Loan Documents”, each payment ) permitted pursuant to the provisions of under this Section 8.6(a3.2, (1) shall be referred to as a “Permitted Payment”, and any amendment, modification, restatement, extension or replacement the Excess Availability of any Junior Creditor Loan Document after Borrower for the thirty (30) consecutive days immediately preceding the date of this Agreement each such payment shall not be less than $6,000,000 and (2) the Excess Availability of Borrower on the date of such payment and after giving effect to such payment shall not be less than $6,000,000; except that if the Borrower fails to meet the foregoing Excess Availability test, Borrower may pay interest in respect of the Junior Debt at a rate of equal to 8% (the “Reduced Rate”) if, at any time, (A) the Excess Availability of Borrower for the thirty (30) consecutive days immediately preceding the date of each such payment shall not be less than $2,000,000 and (B) the Excess Availability of Borrower on the date of such payment and after giving effect to such payment shall not be less than $2,000,000; and with respect to that portion of the interest payment equal to the difference between the Stated Rate and the Reduced Rate (the “Unpaid Interest Payment”), such Unpaid Interest Payment shall be disregarded due and payable on the Junior Debt Stated Maturity Date;
(y) as to any payment of fees in respect of the Junior Debt permitted under this Section 3.2, (1) the Excess Availability of Borrower for purposes the thirty (30) consecutive days immediately preceding the date of determining Permitted Paymentssuch payment shall not be less than $2,000,000 and (2) the Excess Availability of Borrower on the date of such payment and after giving effect to such payment shall not be less than $2,000,000; and
(z) as to any other payment or prepayment permitted under this Section 3.2, (1) the Excess Availability of Borrower for the thirty (30) consecutive days immediately preceding the date of such payment or prepayment shall not be less than $4,000,000 and (2) the Excess Availability of Borrower on the date of such payment or prepayment and after giving effect to such payment or prepayment shall not be less than $4,000,000.
Appears in 1 contract
Sources: Intercreditor and Subordination Agreement (Mackie Designs Inc)