Common use of Subordinated Note Clause in Contracts

Subordinated Note. Notwithstanding anything herein to the contrary, in the case of a purchase of Units pursuant to Section 4.1(a)(iii)(A), the Company shall deliver a Junior Subordinated Note in a principal amount equal to all or a portion of the cash purchase price (in lieu of paying such portion of the purchase price in cash), which Junior Subordinated Note shall mature on the fifth anniversary of its issuance and accrue interest, compounded annually, payable concurrently with the payment of principal, at the applicable Applicable Federal Rate on the date of issuance; provided that if any of the conditions set forth in the first sentence of this Section 5(b) exists which prohibits such payment by delivery of a Junior Subordinated Note, the portion of the payment so prohibited shall be made, to the extent such payment is not prohibited, by the Company’s delivery of New Preferred Units having an aggregate liquidation preference equal to the balance of the purchase price and accruing dividends, compounded annually, at a yield equivalent to the interest rate that would have been payable on the aforementioned Junior Subordinated Note. The Company shall use its reasonable efforts (or shall cause PGA Holdings to use its reasonable efforts) to repurchase Units pursuant to Section 4.1(a)(i), Section 4.1(a)(ii) or Section 4.1(a)(iii)(B) with cash and/or to prepay any Junior Subordinated Notes or redeem any New Preferred Units issued in connection with such repurchase of Units. The Company shall have the right set forth in clause (i) of Section 5(a) whether or not the member of the Executive Group selling such Units is an obligor of the Company. Any Junior Subordinated Note (or New Preferred Units issued in lieu thereof) shall be prepaid (or redeemed) upon a Sale of the Company from net cash proceeds, if any, payable to the Company or its unitholders; to the extent that sufficient net cash proceeds are not so payable, the Junior Subordinated Note (or New Preferred Units issued in lieu thereof) shall be cancelled in exchange for such other non-cash consideration received by unitholders in the Sale of the Company having a fair market value equal to the principal of and accrued interest on the note. Any Junior Subordinated Note (or New Preferred Units issued in lieu thereof) also shall be prepaid (or redeemed) upon the consummation of an initial Public Offering from net cash proceeds, if any, payable to the Company or its unitholders; to the extent that sufficient net cash proceeds are not so payable, the Junior Subordinated Note (or New Preferred Units issued in lieu thereof) shall be cancelled in exchange for such other non-cash consideration received by unitholders in the initial Public Offering having a fair market value equal to the principal of and accrued interest on the note. The principal of and accrued interest on any such note may be prepaid (and New Preferred Units issued in lieu thereof may be redeemed) in whole or in part at any time at the option of the Company. If interest (or a cash distribution) is required to be paid on any Junior Subordinated Note (or New Preferred Units issued in lieu thereof) and any of the conditions set forth in the first sentence of this Section 5(b) exists or if any such cash payment would result in adverse accounting treatment for the Company which prohibits the payment of such interest (or distributions) in cash, such interest may be cumulated and accrued until and to the extent that such prohibition no longer exists.

Subordinated Note. Notwithstanding anything herein (a) On the Closing Date, ▇▇▇▇▇ issued to the contrary, Seller the subordinated note substantially in the case form of a purchase of Units pursuant to Section 4.1(a)(iii)(AExhibit B (the "Subordinated Note"), the Company shall deliver a Junior Subordinated Note in a . The principal amount equal to all or a portion of the cash purchase price (in lieu of paying such portion of the purchase price in cash), which Junior Subordinated Note shall mature be calculated pursuant to the Daily Report and, on any day, shall be equal to the Subordinated Interest on such day; provided, however, that the principal amount of the Subordinated Note shall be fixed on and not be recalculated after the Commitment Termination Date; provided, further, that in no event shall the principal amount of the Subordinated Note calculated pursuant to the Daily Report at any time exceed the Required Overcollateralization Amount. (b) Interest on the fifth anniversary principal amount of its issuance the Subordinated Note shall accrue at a rate set forth in the Subordinated Note. Principal and accrue interest, compounded annually, payable interest payments on the Subordinated Note may be made to the extent permitted by the Triple-A One Security Agreement. Principal amounts outstanding on the Subordinated Note shall increase concurrently with the payment of principal, at the applicable Applicable Federal Rate Purchase Price pursuant to the terms of Section 2.3(a)(ii) hereof. Principal payments on the date Subordinated Note shall become payable only upon the release of issuance; provided that if Collateral by the Collateral Agent pursuant to, and in accordance with, Section 23(b) of the Triple-A One Security Agreement. Except to the extent permitted by the Triple-A One Security Agreement, the Seller agrees not to ask, demand, ▇▇▇ for or take or receive from ▇▇▇▇▇ in cash or other property, by set-off or in any other manner, (including, without limitation, from or by way of the Collateral), payment of all or any part of the Subordinated Note. (c) The Seller agrees upon any distribution of all or any of the conditions set forth assets of ▇▇▇▇▇ to creditors of ▇▇▇▇▇ upon the dissolution, winding up, total or partial liquidation, arrangement, reorganization, adjustment, protection, relief, or composition of ▇▇▇▇▇ or its debts, any payment or distribution of any kind (including, without limitation, cash, property, securities and any payment or distribution which may be payable or deliverable by reason of the payment of any other Debt of ▇▇▇▇▇ being subordinated to the payment of the Subordinated Note) in respect of the first sentence of this Section 5(b) exists which prohibits such payment by delivery of a Junior Subordinated Note that otherwise would be payable or deliverable upon or with respect to the Subordinated Note, the portion directly or indirectly, by set-off or in any other manner, including, without limitation, from or by way of the payment so prohibited Collateral, shall be madepaid or delivered directly to the Collateral Agent for application (in the case of cash) to or as Collateral (in the case of non-cash property or securities) for the payment or prepayment in full of, the Obligations (other than the Subordinated Note) until the Obligations shall have been indefeasibly paid in full in cash. The Collateral Agent is irrevocably authorized and empowered (in its own name or in the name of the Seller or otherwise), but shall have no obligation, to demand, ▇▇▇ for, collect and receive every payment or distribution referred to in the extent preceding sentence and give acquittance therefor and to file claims and proofs of claim and take such other action (including, without limitation, voting the Subordinated Note and enforcing any security interest or other lien securing payment of the Subordinated Note) as the Collateral Agent may deem necessary or advisable for the exercise or enforcement of any of the rights or interest of Triple-A One. The Seller shall duly and promptly take such action as the Collateral Agent may request to (i) collect the Subordinated Note for the account of Triple-A One and to file appropriate claims or proofs of claim in respect of the Subordinated Note, (ii) execute and deliver to the Collateral Agent such powers of attorney, assignments or other instruments as the Collateral Agent may request in order to enable the Collateral Agent to enforce any and all claims with respect to, and any security interests and other liens securing payment of, the Subordinated Note, and (iii) collect and receive any and all payments or distributions which may be payable or deliverable upon or with respect to the Subordinated Note. (d) All payments or distributions upon or with respect to the Subordinated Note that are received by the Seller contrary to the provisions of the Operative Documents shall be received in trust for the benefit of the holders of the Obligations, shall be segregated from other funds and property held by the Seller and shall be forthwith paid over to the Collateral Agent in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to, or held as Collateral (in the case of non-cash property or securities) for the payment or prepayment in full of, the Obligations until the Obligations shall have been indefeasibly paid in full in cash. The Seller agrees that no payment or distribution to Triple-A One pursuant to the provisions of the Subordinated Note shall entitle the Seller to exercise any rights of subrogation in respect thereof against ▇▇▇▇▇ until the Obligations and all principal and interest under the Seller Note shall have been indefeasibly paid in full in cash. The Seller and ▇▇▇▇▇ hereby waive promptness, diligence, notice of acceptance and any other notice with respect to any of the Obligations and any requirement that the Collateral Agent protect, secure, perfect or insure any security interest or lien on any property subject thereto or exhaust any right or take any action against ▇▇▇▇▇ or any other Person or any Collateral. (e) The Subordinated Note is not prohibitedsecured by the Collateral pursuant to the Subordinated Security Agreement, subject to the prior lien of the Collateral Agent under the Triple-A One Security Agreement. No payments may be received, directly or indirectly, by the Company’s delivery of New Preferred Units having an aggregate liquidation preference equal Seller (and if received, the Seller agrees to return such payments to ▇▇▇▇▇) on the Subordinated Note unless ▇▇▇▇▇ has paid all amounts required pursuant to the balance Triple-A One Security Agreement to be paid prior to any payments in respect of the purchase price Subordinated Note. (f) The Seller agrees and accruing dividends, compounded annually, at a yield equivalent confirms that the Collateral Agent shall not have any duty whatsoever to the interest rate Seller as holder of the Subordinated Note and that would have been payable on the aforementioned Junior Collateral Agent shall not be liable to the Seller for any action taken or omitted to be taken with respect to the Subordinated Note or the Collateral under the Triple-A One Security Agreement. (g) Prior to the indefeasible payment in full in cash of the other Obligations, the Seller will not seek to collect any amounts owing under the Subordinated Note or exercise or enforce any of its rights under the Subordinated Security Agreement. (h) The Seller and ▇▇▇▇▇ further agree that at no time hereafter will any part of the indebtedness represented by the Subordinated Note be represented by any negotiable instruments or other writings except the Subordinated Note. The Company shall use its reasonable efforts (or shall cause PGA Holdings to use its reasonable efforts) to repurchase Units pursuant to Section 4.1(a)(i), Section 4.1(a)(ii) or Section 4.1(a)(iii)(B) with cash and/or to prepay any Junior Subordinated Notes or redeem any New Preferred Units issued in connection with such repurchase of Units. The Company shall have the right set forth in clause . (i) The Seller and ▇▇▇▇▇ waive notice of Section 5(a) whether or not and consent to the member creation of the Executive Group selling such Units is an obligor of the Company. Any Junior Subordinated Note (or New Preferred Units issued in lieu thereof) shall be prepaid (or redeemed) upon a Sale of the Company from net cash proceeds, if any, payable to the Company or its unitholders; to the extent that sufficient net cash proceeds are not so payable, the Junior Subordinated Note (or New Preferred Units issued in lieu thereof) shall be cancelled in exchange for such other nonTriple-cash consideration received by unitholders in the Sale of the Company having a fair market value equal to the principal of and accrued interest on the note. Any Junior Subordinated Note (or New Preferred Units issued in lieu thereof) also shall be prepaid (or redeemed) upon the consummation of an initial Public Offering from net cash proceeds, if any, payable to the Company or its unitholders; to the extent that sufficient net cash proceeds are not so payable, the Junior Subordinated Note (or New Preferred Units issued in lieu thereof) shall be cancelled in exchange for such other non-cash consideration received by unitholders in the initial Public Offering having a fair market value equal to the principal of and accrued interest on the note. The principal of and accrued interest on any such note may be prepaid (and New Preferred Units issued in lieu thereof may be redeemed) in whole or in part at any time at the option of the Company. If interest (or a cash distribution) is required to be paid on any Junior Subordinated Note (or New Preferred Units issued in lieu thereof) A One Loans and any of the conditions set forth in other Obligations, any extensions granted or other action taken by Triple-A One, the first sentence Surety Provider, the Program Manager, the Collateral Agent or the Bank Collateral Agent with respect thereto, the taking or releasing of this Section 5(b) exists Collateral or if any such cash payment would result in adverse accounting treatment obligors or guarantors for the Company which prohibits payment thereof, and the payment releasing of the Seller or any other subordinated creditors. No failure or delay by Triple-A One, the Surety Provider, the Program Manager, the Collateral Agent or the Bank Collateral Agent to exercise any right granted herein, or in any other agreement or by law shall constitute a waiver of such interest right or of any other right. (or distributionsj) in cash▇▇▇▇▇ and the Seller agree to execute and deliver to Triple-A One, the Surety Provider, the Program Manager, the Collateral Agent and the Bank Collateral Agent such interest may be cumulated and accrued until additional documents and to take such further actions as Triple-A One, the Surety Provider, the Program Manager, the Collateral Agent or the Bank Collateral Agent may hereafter require. (k) The terms of the Subordinated Note and the subordination effected hereby, and the rights of Triple-A One, the Surety Provider, the Program Manager, the Collateral Agent and the Bank Collateral Agent and the obligations of the Seller and ▇▇▇▇▇ arising hereunder, shall not be affected, modified or impaired in any manner or to any extent that by (a) any amendment or modification of or supplement to any provision of the Operative Documents or any instrument or document executed or delivered pursuant thereto or in connection with the transactions contemplated thereby; (b) the validity or enforceability of any of such prohibition no longer existsdocuments; (c) any exercise or non-exercise of any right, power or remedy under or in respect of the other Obligations or any instruments or documents related thereto or arising at law; or (d) any waiver, consent, release, indulgence, extension, renewal, modification, delay or other action, inaction or omission in respect of the other Obligations or any of the instruments or documents related thereto.