Restriction on Payments. Notwithstanding any provision of the Subordinated Indebtedness Documents to the contrary and in addition to any other limitations set forth herein or therein, no payment (whether made in cash, securities, other than any Reorganization Subordinated Securities, or other Property or by set-off) of principal, interest, premium or any other amount due with respect to the Subordinated Indebtedness shall be made or received, and neither Subordinated Agent nor the Subordinated Creditor shall exercise any right of set-off or recoupment with respect to any Subordinated Indebtedness, until all of the Senior Indebtedness is Paid in Full; provided, that, except as provided in the immediately succeeding sentence or in subsection 2.3, the Company may make and Subordinated Agent and the Subordinated Creditor may accept and retain Permitted Subordinated Indebtedness Payments and provided, further, that the Company may make and Subordinated Agent may accept and retain payments to the Subordinated Agent contemplated by subsection 2.1. Notwithstanding the foregoing, no Obligor may make, and neither Subordinated Agent nor the Subordinated Creditor may accept or retain, any payment of principal, interest, premium or any other amount with respect to the Subordinated Indebtedness (other than any payment made solely in Reorganization Subordinated Securities or payments made to the Subordinated Agent as contemplated in subsection 2.1) if, at the time of such payment or, with respect to clause (a) below, immediately after giving effect thereto: (a) a Senior Payment Default exists; or (b) subject to the penultimate sentence of this subsection 2.2, the Subordinated Agent and the Subordinated Creditor shall have received a Senior Default Notice from Senior Agent or any Senior Creditor stating that a Senior Covenant Default exists or would be created by the making of such payment. The Company may resume Permitted Subordinated Indebtedness Payments (and may make any Permitted Subordinated Indebtedness Payments missed due to the application of clauses (a) or (b) of this subsection 2.2), and Subordinated Agent and Subordinated Creditor may accept and retain such Permitted Subordinated Indebtedness Payments: (1) in the case of a Senior Payment Default referred to in clause (a) of this subsection 2.2, upon a cure or waiver (as evidenced by a written waiver from Senior Agent or the Senior Creditors to the Company) thereof in accordance with the terms of the Senior Purchase Agreement or Permitted Refinancing Debt Documents; or (2) in the case of a Senior Covenant Default referred to in clause (b) of this subsection 2.2, upon the earlier to occur of (x) the cure or waiver (as evidenced by a written waiver from Senior Agent or the Senior Creditors to the Company) of all such Senior Covenant Defaults in accordance with the terms of the Senior Purchase Agreement or Permitted Refinancing Debt Documents, and (y) the expiration of 180 days from the date on which the Senior Default Notice was received. Notwithstanding any provision of this subsection 2.2 to the contrary: (A) the Company shall not be prohibited from making, and Subordinated Agent and Subordinated Creditor shall not be prohibited from accepting and retaining, Permitted Subordinated Indebtedness Payments by virtue of the payment blockage effected by clause (b) of this subsection 2.2 for more than an aggregate of 180 days within any period of 360 consecutive days; (B) no Senior Covenant Default existing on the date any notice is given pursuant to clause (b) of this subsection 2.2 shall, unless the same shall have ceased to exist for a period of at least 60 consecutive days, be used as a basis for any subsequent such notice (for purposes of this paragraph, breaches of the same financial covenant for consecutive periods shall constitute separate and distinct Senior Covenant Defaults); and (C) Senior Agent and the Senior Creditors shall not deliver more than three (3) Senior Default Notices, in the aggregate, prior to the termination of this Agreement. The provisions of this subsection 2.2 shall not apply to any payment with respect to which subsection 2.3 would be applicable.
Appears in 1 contract
Sources: Subordination and Intercreditor Agreement (Terremark Worldwide Inc)
Restriction on Payments. Notwithstanding any provision of the Subordinated Indebtedness Second Lien Loan Documents to the contrary contrary, and in addition to any other limitations set forth herein or therein, at anytime prior to an Insolvency Proceeding, when a payment default in excess of the Monetary Threshold Amount has occurred and is continuing under the First Lien Loan Documents and there is not Availability (as defined in the First Lien Credit Agreement (as in effect on the date hereof)) (due to termination of Commitments or otherwise) in an amount equal to or greater than the amount required to reduce such payment default to an amount less than the Monetary Threshold Amount, the First Lien Agent shall provide written notice thereof to the Second Lien Agent, and thereafter until such time as such payment default is no longer in excess of the Monetary Threshold Amount or Availability is equal to or greater than the amount required to reduce such payment default to an amount less than the Monetary Threshold Amount, no payment (whether made in cash, securities, securities or other property or by setoff) of interest (other than any Reorganization Subordinated Securities, interest paid in kind) or other Property or by set-off) voluntary prepayments of principal, interest, premium or any other amount due with principal in respect to of the Subordinated Second Lien Indebtedness shall be made or received, and neither Subordinated Agent nor the Subordinated Creditor shall exercise any right of set-off or recoupment with respect to any Subordinated Indebtedness, until all . Each failure of the Senior Indebtedness is Paid in Full; Borrower or a Guarantor to make a payment of principal or interest or a fee or other amount due under the First Lien Loan Documents shall constitute a separate payment default, provided, that, except as provided in the immediately succeeding sentence or in subsection 2.3, the Company may make and Subordinated Agent and the Subordinated Creditor may accept and retain Permitted Subordinated Indebtedness Payments and provided, further, that the Company may make and Subordinated Agent may accept and retain payments to the Subordinated Agent contemplated by subsection 2.1. Notwithstanding notwithstanding the foregoing, no Obligor may make, and neither Subordinated Agent nor all payment defaults under the Subordinated Creditor may accept or retain, any First Lien Loan Documents existing at the time that a payment of principal, interest, premium or any other amount permitted hereunder with respect to the Subordinated Second Lien Indebtedness is due and payable shall constitute a single payment default. For the avoidance of doubt, the parties hereto hereby agree that (other than i) this Section 2.c shall not be applicable during an Insolvency Proceeding and (ii) any failure to make a payment made solely in Reorganization Subordinated Securities or payments made to respect of the Subordinated Agent Second Lien Indebtedness as contemplated in subsection 2.1) if, at the time of such payment or, with respect to clause (a) below, immediately after giving effect thereto:
(a) a Senior Payment Default exists; or
(b) subject to the penultimate sentence result of this subsection 2.2, Section 2.c shall constitute a Second Lien Default and the Subordinated Second Lien Agent and the Subordinated Second Lien Lenders may thereafter Exercise Any Secured Creditor shall have received a Senior Default Notice from Senior Agent or any Senior Creditor stating that a Senior Covenant Default exists or would be created by Remedies after the making of such payment. The Company may resume Permitted Subordinated Indebtedness Payments (and may make any Permitted Subordinated Indebtedness Payments missed due to the application of clauses (a) or (b) of this subsection 2.2), and Subordinated Agent and Subordinated Creditor may accept and retain such Permitted Subordinated Indebtedness Payments:
(1) in the case of a Senior Payment Default referred to in clause (a) of this subsection 2.2, upon a cure or waiver (as evidenced by a written waiver from Senior Agent or the Senior Creditors to the Company) thereof applicable Standstill Period in accordance with the terms of the Senior Purchase Agreement or Permitted Refinancing Debt Documents; or
(2) in the case of a Senior Covenant Default referred to in clause (b) of this subsection 2.2, upon the earlier to occur of (x) the cure or waiver (as evidenced by a written waiver from Senior Agent or the Senior Creditors to the Company) of all such Senior Covenant Defaults in accordance with the terms of the Senior Purchase Agreement or Permitted Refinancing Debt Documents, and (y) the expiration of 180 days from the date on which the Senior Default Notice was received. Notwithstanding any provision of this subsection 2.2 to the contrary:
(A) the Company shall not be prohibited from making, and Subordinated Agent and Subordinated Creditor shall not be prohibited from accepting and retaining, Permitted Subordinated Indebtedness Payments by virtue of the payment blockage effected by clause (b) of this subsection 2.2 for more than an aggregate of 180 days within any period of 360 consecutive days;
(B) no Senior Covenant Default existing on the date any notice is given pursuant to clause (b) of this subsection 2.2 shall, unless the same shall have ceased to exist for a period of at least 60 consecutive days, be used as a basis for any subsequent such notice (for purposes of this paragraph, breaches of the same financial covenant for consecutive periods shall constitute separate and distinct Senior Covenant Defaults); and
(C) Senior Agent and the Senior Creditors shall not deliver more than three (3) Senior Default Notices, in the aggregate, prior to the termination of this Agreement. The provisions of this subsection 2.2 shall not apply to any payment with respect to which subsection 2.3 would be applicableSection 2.b.
Appears in 1 contract
Restriction on Payments. Notwithstanding any provision of the Subordinated Indebtedness Documents to the contrary and in addition to any other limitations set forth herein or therein, no payment (whether made in cash, securities, other than any Reorganization Subordinated Securities, securities or other Property property or by set-off) of principal, interest, premium interest or any other amount due with respect to the Subordinated Indebtedness (other than (i) provided no Senior Payment Default exists, reimbursement for reasonable out-of-pocket costs and expenses, including attorneys’ fees and expenses, actually incurred by such Person on matters directly relating to the Subordinated Indebtedness and then due and payable in accordance with the terms of the Subordinated Indebtedness Documents, to the extent that the aggregate amount of such out-of-pocket costs and expenses, including attorneys’ fees and expenses, does not exceed $100,000 in the aggregate during the term of this Agreement, (ii) a distribution of Reorganization Subordinated Securities and (iii) Permitted Subordinated PIK Amounts) shall be made or received, and neither Subordinated Agent nor the no Subordinated Creditor shall exercise any right of set-off or recoupment with respect to any Subordinated Indebtedness, until all of the Senior Indebtedness (other than Excess Senior Indebtedness) is Paid in Full; provided, thathowever, except as provided in the immediately succeeding sentence or in subsection Section 2.3, the Company Obligors may make and Subordinated Agent and the Subordinated Creditor Creditors may accept and retain Permitted Subordinated Indebtedness Payments and provided, further, that the Company may make and Subordinated Agent may accept and retain payments to the Subordinated Agent contemplated by subsection 2.1Payments. Notwithstanding the foregoing, no Obligor may make, and neither Subordinated Agent nor the no Subordinated Creditor may accept or retainreceive, any payment of principal, interest, premium interest or any other amount with respect to the Subordinated Indebtedness (other than any payment made solely (i) provided no Senior Payment Default exists, reimbursement for reasonable out-of-pocket costs and expenses, including attorneys’ fees and expenses, actually incurred by such Person on matters directly relating to the Subordinated Indebtedness and then due and payable in accordance with the terms of the Subordinated Indebtedness Documents, to the extent that the aggregate amount of such out-of-pocket costs and expenses, including attorneys’ fees and expenses, does not exceed $100,000 in the aggregate during the term of this Agreement, (ii) a distribution of Reorganization Subordinated Securities or payments made to the and (iii) Permitted Subordinated Agent as contemplated in subsection 2.1PIK Amounts) if, at the time of such payment or, with respect to clause (a) below, or immediately after giving effect thereto:
(a) subject to Section 2.4, a Senior Payment Default existshas occurred and is continuing; or
(b) subject to the penultimate sentence of this subsection Section 2.2, the Subordinated Agent and the Subordinated Creditor Creditors shall have received a Senior Default Notice from the Senior Agent or any Senior Creditor stating that a Senior Covenant Default exists or would be created by the making of such payment. The Company Obligors may resume Permitted Subordinated Indebtedness Payments (and may make any Permitted Subordinated Indebtedness Payments missed due to the application of clauses (a) or (b) of this subsection Section 2.2), and ) in respect of the Subordinated Agent and Subordinated Creditor may accept and retain such Permitted Subordinated Indebtedness PaymentsIndebtedness:
(1) in the case of a Senior Payment Default referred to in clause (a) of this subsection Section 2.2, upon a the earlier to occur of (x) the cure (if such Senior Payment Default is not an Event of Default under the Credit Agreement or Permitted Refinancing Loan Documents) or waiver (as evidenced by a written waiver from Senior Agent or the to Borrowers) of such Senior Creditors to the Company) thereof Payment Default in accordance with the terms of the Senior Purchase Credit Agreement or Permitted Refinancing Debt DocumentsLoan Documents or (y) Payment in Full of the Senior Indebtedness; or
(2) in the case of a Senior Covenant Default referred to in clause (b) of this subsection Section 2.2, upon the earlier earliest to occur of (x) the cure (if such Senior Covenant Default is not an Event of Default under the Credit Agreement or Permitted Refinancing Loan Documents) or waiver (as evidenced by a written waiver from Senior Agent or the Senior Creditors to the CompanyBorrowers) of all such Senior Covenant Defaults Default in accordance with the terms of the Senior Purchase Credit Agreement or Permitted Refinancing Debt Loan Documents, and (y) the expiration of 180 one hundred eighty (180) days from the date on which the Senior Default Notice with respect thereto was receivedreceived and (z) Payment in Full of the Senior Indebtedness. Notwithstanding any provision of this subsection Section 2.2 to the contrary:
(A) A. the Company Obligors shall not be prohibited from making, and Subordinated Agent and Subordinated Creditor Creditors shall not be prohibited from accepting and retainingreceiving, Permitted Subordinated Indebtedness Payments by virtue payments as a result of the payment blockage effected by clause (b) of this subsection Section 2.2 for more than an aggregate of 180 one hundred eighty (180) days within any period of 360 three hundred sixty-five (365) consecutive days;
(B) B. no Senior Covenant Default existing on the date any notice is given pursuant to clause (b) of this subsection Section 2.2 shall, unless the same shall have ceased to exist for a period of at least 60 sixty (60) consecutive days, be used as a basis for any subsequent such notice (for purposes of this paragraph, breaches of the same financial covenant for consecutive periods shall constitute separate and distinct Senior Covenant Defaults);
C. no more than two (2) Senior Default Notices may be sent pursuant to clause (b) of this Section 2.2 during any period of three hundred sixty-five (365) consecutive days and no more than six (6) Senior Default Notices may be sent pursuant to clause (b) of this Section 2.2 in the aggregate;
D. Borrowers shall not be prohibited from paying, and the Subordinated Creditors shall not be prohibited from accepting and retaining any payment of the Subordinated Indebtedness consented to in writing by the Senior Agent;
E. the failure of Borrowers to make any payment with respect to the Subordinated Indebtedness by reason of the operation of this Section 2.2 shall not be construed as preventing the occurrence of a Subordinated Default under the applicable Subordinated Indebtedness Documents; and
(C) F. each failure of an Obligor to make a payment of principal or interest or a Minimum Fee or Other Payment Amount under the Loan Documents or Permitted Refinancing Loan Documents shall constitute a separate Senior Agent Payment Default, provided, that notwithstanding the foregoing, all Senior Payment Defaults existing at the time that a Permitted Subordinated Indebtedness Payment is due and the payable shall constitute a single Senior Creditors shall not deliver more than three (3) Senior Default Notices, in the aggregate, prior to the termination of this AgreementPayment Default. The provisions of this subsection Section 2.2 shall not apply to any payment with respect to which subsection Section 2.3 would be applicable.
Appears in 1 contract
Restriction on Payments. Notwithstanding any provision of the Subordinated Indebtedness Documents to the contrary and in addition to any other limitations set forth herein or therein, no payment (whether made in cash, securities, other than any Reorganization Subordinated Securities, or other Property or by set-off) of principal, interest, premium or any other amount due with respect to the Subordinated Indebtedness shall be made or received, and neither Subordinated Agent nor the Subordinated Creditor shall exercise any right of set-off or recoupment with respect to any Subordinated Indebtedness, until all of the Senior Indebtedness is Paid in Full; provided, that, except as provided in the immediately succeeding sentence or in subsection 2.3, the Company may make and Subordinated Agent and the Subordinated Creditor may accept and retain Permitted Subordinated Indebtedness Payments and provided, further, that the Company may make and Subordinated Agent may accept and retain payments to the Subordinated Agent contemplated by subsection 2.1Payments. Notwithstanding the foregoing, no Obligor may make, and neither Subordinated Agent nor the Subordinated Creditor may accept or retain, any payment of principal, interest, premium or any other amount with respect to the Subordinated Indebtedness (other than any payment made solely in Reorganization Subordinated Securities or payments made to the Subordinated Agent as contemplated in subsection 2.1Securities) if, at the time of such payment or, with respect to clause (a) below, immediately after giving effect thereto:
(a) a Senior Payment Default exists; or
(b) subject to the penultimate sentence of this subsection 2.2, the Subordinated Agent and or the Subordinated Creditor shall have received a Senior Default Notice from Senior Agent or any Senior Creditor stating that a Senior Covenant Default exists or would be created by the making of such payment. The Company may resume Permitted Subordinated Indebtedness Payments (and may make any Permitted Subordinated Indebtedness Payments missed due to the application of clauses (a) or (b) of this subsection 2.2), and Subordinated Agent and Subordinated Creditor may accept and retain such Permitted Subordinated Indebtedness Payments:
(1) in the case of a Senior Payment Default referred to in clause (a) of this subsection 2.2, upon a cure or waiver (as evidenced by a written waiver from Senior Agent or the Senior Creditors to the Company) thereof in accordance with the terms of the Senior Purchase Agreement or Permitted Refinancing Debt Documents; or
(2) in the case of a Senior Covenant Default referred to in clause (b) of this subsection 2.2, upon the earlier to occur of (x) the cure or waiver (as evidenced by a written waiver from Senior Agent or the Senior Creditors to the Company) of all such Senior Covenant Defaults in accordance with the terms of the Senior Purchase Agreement or Permitted Refinancing Debt Documents, and (y) the expiration of 180 days from the date on which the Senior Default Notice was received. Notwithstanding any provision of this subsection 2.2 to the contrary:
(A) the Company shall not be prohibited from making, and Subordinated Agent and Subordinated Creditor shall not be prohibited from accepting and retaining, Permitted Subordinated Indebtedness Payments by virtue of the payment blockage effected by clause (b) of this subsection 2.2 for more than an aggregate of 180 days within any period of 360 consecutive days;
(B) no Senior Covenant Default existing on the date any notice is given pursuant to clause (b) of this subsection 2.2 shall, unless the same shall have ceased to exist for a period of at least 60 consecutive days, be used as a basis for any subsequent such notice (for purposes of this paragraph, breaches of the same financial covenant for consecutive periods shall constitute separate and distinct Senior Covenant Defaults); and
(C) Senior Agent and the Senior Creditors shall not deliver more than three (3) Senior Default Notices, in the aggregate, prior to the termination of this Agreement. The provisions of this subsection 2.2 shall not apply to any payment with respect to which subsection 2.3 would be applicable.
Appears in 1 contract
Sources: Subordination and Intercreditor Agreement (Terremark Worldwide Inc)
Restriction on Payments. Notwithstanding any provision of the Subordinated Indebtedness Documents to the contrary and in addition to any other limitations set forth herein or therein, no payment (whether made in cash, securities, other than any Reorganization Subordinated Securities, securities or other Property or by set-off) of principal, interest, premium or any other amount due with respect to the Subordinated Indebtedness shall be made or received, and neither Subordinated Agent nor the no Subordinated Creditor shall exercise any right of set-off or recoupment with respect to any Subordinated Indebtedness, until all of the Senior Indebtedness is Paid in Full; provided, that, except as provided in the immediately succeeding sentence or in subsection Section 2.3, the Company Carbiz Parent may make make, and Subordinated Agent and the Subordinated Creditor Creditors may accept and retain Permitted Subordinated Indebtedness Payments and provided, further, that the Company may make and Subordinated Agent may accept and retain payments to the Subordinated Agent contemplated by subsection 2.1Payments. Notwithstanding the foregoing, no Obligor may make, and neither Subordinated Agent nor the no Subordinated Creditor may accept or retain, any payment of principal, interest, premium premium, Subordinated Liquidated Damages or any other amount with respect to the Subordinated Indebtedness (other than any payment made solely payments Paid in Reorganization Equity consisting of Permitted Subordinated Securities or payments made to Indebtedness Payments of the type specified in clause (b) of the definition of Permitted Subordinated Agent as contemplated in subsection 2.1Indebtedness Payments) if, at the time of such payment or, with respect to clause (a) below, immediately after giving effect thereto:
(a) a Senior Payment Default exists; or
(b) subject to the penultimate sentence of this subsection Section 2.2, the Subordinated Agent and the Subordinated Creditor Creditors shall have received a Senior Default Notice from Senior Administrative Agent or any Senior Creditor stating that a Senior Covenant Default exists or would be created by the making of such payment. The Company Carbiz Parent may resume Permitted Subordinated Indebtedness Payments (and may make any Permitted Subordinated Indebtedness Payments missed due to the application of clauses (a) or (b) of this subsection Section 2.2), and Subordinated Agent and Subordinated Creditor Creditors may accept and retain such Permitted Subordinated Indebtedness Debt Payments:
(1) in the case of a Senior Payment Default referred to in clause (a) of this subsection Section 2.2, upon a cure or waiver (as evidenced by a written waiver from Senior Administrative Agent or the Senior Creditors to the CompanyBorrowers) thereof in accordance with the terms of the Senior Purchase Loan Agreement or Permitted Refinancing Debt Loan Documents; or
(2) in the case of a Senior Covenant Default referred to in clause (b) of this subsection 2.2, upon the earlier to occur of (x) the cure or waiver (as evidenced by a written waiver from Senior Agent or the Senior Creditors to the Company) of all such Senior Covenant Defaults in accordance with the terms of the Senior Purchase Agreement or Permitted Refinancing Debt Documents, and (y) the expiration of 180 days from the date on which the Senior Default Notice was received. Notwithstanding any provision of this subsection 2.2 to the contrary:
(A) the Company shall not be prohibited from making, and Subordinated Agent and Subordinated Creditor shall not be prohibited from accepting and retaining, Permitted Subordinated Indebtedness Payments by virtue of the payment blockage effected by clause (b) of this subsection 2.2 for more than an aggregate of 180 days within any period of 360 consecutive days;
(B) no Senior Covenant Default existing on the date any notice is given pursuant to clause (b) of this subsection 2.2 shall, unless the same shall have ceased to exist for a period of at least 60 consecutive days, be used as a basis for any subsequent such notice (for purposes of this paragraph, breaches of the same financial covenant for consecutive periods shall constitute separate and distinct Senior Covenant Defaults); and
(C) Senior Agent and the Senior Creditors shall not deliver more than three (3) Senior Default Notices, in the aggregate, prior to the termination of this Agreement. The provisions of this subsection 2.2 shall not apply to any payment with respect to which subsection 2.3 would be applicable.
Appears in 1 contract
Sources: Subordination and Intercreditor Agreement (Carbiz Inc)