Subordination of Intercompany Indebtedness. (a) The Company, for itself and on behalf of each of its Subsidiaries (each, a “Subordinating Note Party”), covenants and agrees, in their respective capacities as issuers or holders of any principal, interest (including interest which accrues after the commencement of any case or proceeding in bankruptcy or for the reorganization of any company), fees, charges, expenses, attorneys’ fees and any other sum chargeable to any Subordinating Note Party or due in respect of the aggregate unpaid amount of all advances, indebtedness, loans, payables and other extensions of credit and obligations made by a Subordinating Note Party to another Subordinating Note Party as holder (the “Intercompany Indebtedness”), that the payment of any Intercompany Indebtedness is subordinated in right of payment, to the extent and in the manner provided in this Section 24.11, to the payment in full of all obligations under this Agreement, any Subsidiary Guaranty and the Notes (collectively, the “Obligations”), and that the subordination is for the benefit of the holders of the Notes. Without limitation of the foregoing, so long as no Event of Default has occurred and is continuing, (1) as to any Permitted Intercompany Financings, any Subordinating Note Party may make and receive any (x) payments of principal and interest, including, without limitation, prepayments of principal, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Permitted Intercompany Financings to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.11 and (2) as to Intercompany Indebtedness other than Permitted Intercompany Financings, any Subordinating Note Party may make and receive any (x) regularly scheduled payments of principal and interest as and when due, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Intercompany Indebtedness to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.11; provided, that in the event that any Subordinating Note Party receives any payment of any such Intercompany Indebtedness at a time when such payment is prohibited by this Section, such payment shall be held by such Subordinating Note Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the holders of Notes (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement has the same right to receive such payments, the Company shall be permitted to pay such payment or distribution to the applicable agent and to the holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision)). (b) Each of the Subordinating Note Parties, for itself and on behalf of its Subsidiaries, by its acceptance of any Intercompany Indebtedness, (i) authorizes the Required Holders to demand specific performance of the terms of this Section 24.11 at any time when any holder of Intercompany Indebtedness shall have failed to comply with any provisions of this Section 24.11 which are applicable to it and (ii) irrevocably waives to the extent permitted under applicable law any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. Waste Connections, Inc. Note Purchase Agreement (c) Upon any distribution of assets of any Subordinating Note Party in any dissolution, winding up, liquidation or reorganization (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or otherwise): (i) the holders of the Notes shall first be entitled to receive payment in full in cash of the Obligations before any holder of Intercompany Indebtedness is entitled to receive any payment on account of such Intercompany Indebtedness; (ii) any payment or distribution of assets of any Subordinating Note Party of any kind or character, whether in cash, property or securities, to which any such holder of Intercompany Indebtedness would be entitled except for the provisions of this Section 24.11(c), shall be paid by the liquidating trustee or agent or other Person making such payment or distribution directly to the holders of the Notes, to the extent necessary to make payment in full of all Obligations remaining unpaid after giving effect to any concurrent payment or distribution or provisions therefor to the holders of the Notes; (iii) in the event that, notwithstanding the foregoing provisions of this Section 24.11(c), any payment or distribution of assets of any Subordinating Note Party of any kind or character, whether in cash, property or securities, shall be received by any such holder of Intercompany Indebtedness on account of Intercompany Indebtedness before the discharge of the Obligations, such payment or distribution shall be received and held in trust for and shall be paid over to the holders of the Notes, for application to the payment of the Obligations, after giving effect to any concurrent payment or distribution or provision therefor to such holders of the Notes (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement has the same right to receive such payments, the Company shall be permitted to pay such payment or distribution to the applicable agent and holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision)), and (iv) no right of the holders of the Notes to enforce the subordination provisions herein shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of any Subordinating Note Party. If, for any reason, any of the trusts expressed to be created in this Section 24.11(c)(iii) should fail or be unenforceable, the affected Subordinating Note Party will promptly pay or distribute any such payment or distribution of assets to the holders of the Notes for application to the payment of the Obligations in accordance with the terms of this Section. (d) Notwithstanding the foregoing, the foregoing subordination shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Company or any Subsidiary Guarantor is made and such payment or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the holders of the Notes in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any debtor relief law or otherwise, all as if such payment had not been made regardless of any prior revocation, rescission, termination or reduction. The obligations under this paragraph shall survive termination of this Agreement.
Appears in 2 contracts
Sources: Assumption and Exchange Agreement (Waste Connections, Inc.), Assumption and Exchange Agreement (Waste Connections US, Inc.)
Subordination of Intercompany Indebtedness. (a) The Company, for itself Borrower and each Subordinating Loan Party covenants and agrees (on its own behalf and on behalf of each of its Subsidiaries (each, that is or becomes a “Subordinating Note Loan Party”), covenants and agrees, in their respective capacities as issuers or holders (as applicable) of any principal, interest (including interest which accrues after the commencement of any case or proceeding in bankruptcy or for the reorganization of any company), fees, charges, expenses, attorneys’ fees and any other sum chargeable to any Subordinating Note Party owed by the Borrower or due in respect of the aggregate unpaid amount of all advances, indebtedness, loans, payables and other extensions of credit and obligations made owed by a the Borrower to any Subordinating Note Loan Party to another Subordinating Note Party as holder (the “Intercompany Indebtedness”), that the payment of any Intercompany Indebtedness is subordinated in right of payment, to the extent and in the manner provided in this Section 24.1111.23, to the payment in full of all obligations under this Agreement, any Subsidiary Guaranty Obligations and the Notes termination of the Aggregate Commitments (collectively, other than contingent indemnification obligations) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Agents and the applicable L/C Issuer shall have been made) (the “Discharge of the Senior Obligations”), and that the subordination herein is for the benefit of the holders of Agents and the NotesLenders. Without limitation of the foregoingforegoing with respect to any Intercompany Indebtedness, so long as no Event of Default has occurred and is continuing, (1) as to any Permitted Intercompany Financings, any Subordinating Note Party the Borrower may make and any Subordinating Loan Party may receive any (x) payments of principal and interest, including, without limitation, prepayments of principal, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Permitted Intercompany Financings to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.11 and (2) as to Intercompany Indebtedness other than Permitted Intercompany Financings, any Subordinating Note Party may make and receive any (x) regularly scheduled payments of principal and interest as and when due, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Intercompany Indebtedness to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.1111.23; provided, that in the event that any Subordinating Note Loan Party receives any payment of any such Intercompany Indebtedness at a time when such payment is prohibited by this SectionSection 11.23, such payment shall be held by such Subordinating Note Loan Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the holders of Notes Agents (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement the Loan Documents has the same right to receive such payments, the Company Borrower shall be permitted to pay make such payment or distribution to the applicable agent and to the holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision)amount, if any payment is required thereunder).
(b) Each of the Subordinating Note Parties, The Borrower (for itself and on behalf of its Subsidiaries, each Subordinating Loan Party) and each of the Subordinating Loan Parties (by its such Subordinating Loan Party’s acceptance of any Intercompany Indebtedness, Indebtedness owing from the Borrower) hereby (i) authorizes the Required Holders Agents to demand specific performance of the terms of this Section 24.11 11.23 at any time when any holder of Intercompany Indebtedness shall have failed to comply with any provisions of this Section 24.11 11.23 which are applicable to it and (ii) irrevocably waives to the extent permitted under applicable law any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. Waste Connections, Inc. Note Purchase Agreement.
(c) Upon The Borrower (for itself and on behalf of each Subordinating Loan Party) and each of the Subordinating Loan Parties (by such Subordinating Loan Party’s acceptance of any Intercompany Indebtedness owing from the Borrower) agrees that upon any distribution of assets of any Subordinating Note Party the Borrower in any dissolution, winding up, liquidation or reorganization (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or otherwise): (i) the holders of Agents and the Notes Lenders shall first be entitled to receive payment in full in cash of the Obligations before any holder of such Intercompany Indebtedness is entitled to receive any payment on account of such Intercompany Indebtedness; , (ii) any payment or distribution of assets of any Subordinating Note Party the Borrower of any kind or character, whether in cash, property or securities, to which any such holder of Intercompany Indebtedness would be entitled except for the provisions of this Section 24.11(csubsection 11.23(c), shall be paid by the liquidating trustee or agent or other Person making such payment or distribution directly to the holders of the Notesapplicable Agent, to the extent necessary to make payment in full of all Obligations remaining unpaid after giving effect to any concurrent payment or distribution or provisions therefor to such Agent, for itself and the holders of the Notes; other Lenders, (iii) in the event that, notwithstanding the foregoing provisions of this Section 24.11(csubsection 11.23(c), any payment or distribution of assets of any Subordinating Note Party the Borrower of any kind or character, whether in cash, property or securities, shall be received by any such holder of Intercompany Indebtedness on account of Intercompany Indebtedness before the discharge Discharge of the Senior Obligations, such payment or distribution shall be received and held in trust for and shall be paid over to the holders of the Notesapplicable Agent, for application to the payment of the Obligations, after giving effect to any concurrent payment or distribution or provision therefor to such holders of the Notes Agent (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement the Loan Documents has the same right to receive such payments, the Company Borrower shall be permitted to pay make such payment or distribution to the applicable agent and to the holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision))amount, if any payment is required thereunder) and (iv) no right of the holders of the Notes Agents to enforce the subordination provisions herein shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Borrower or any Subordinating Note Loan Party. If, for any reason, any of the trusts expressed to be created in this Section 24.11(c)(iii11.23(c)(iii) should fail or be unenforceable, the affected Subordinating Note Loan Party will promptly pay or distribute any such payment or distribution of assets to the holders of the Notes applicable Agent, for application to the payment of the Obligations for application in accordance with the terms of this SectionSection 11.23.
(d) Notwithstanding the foregoing, the foregoing subordination shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Company Borrower is made, or any Subsidiary Guarantor is made of the Agents, the L/C Issuers and the Lenders exercises its right of setoff, in respect of the Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the holders any of the Notes Agents, the L/C Issuers and the Lenders in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any debtor relief law Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred regardless of any prior revocation, rescission, termination or reduction. The obligations under this paragraph shall survive termination of this Agreement.
(e) Each Subordinating Loan Party, as of the Closing Date or, if later, contemporaneously with becoming a Subordinating Loan Party (or such later time as the Agent may agree in its reasonable discretion), shall provide to the Agents an acknowledgment letter in form and substance reasonably satisfactory to the Agents whereby such Subordinating Loan Party acknowledges and agrees to be bound by the provisions of this Section 11.23.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Waste Connections, Inc.)
Subordination of Intercompany Indebtedness. (a) The Each of the Company and the Subsidiary Guarantors hereby agrees that any intercompany Indebtedness or other intercompany receivables, intercompany payables or intercompany advances directly or indirectly made by or owed to the Company or such Subsidiary Guarantor by any Subsidiary Guarantor or the Company, as applicable, of whatever nature at any time outstanding shall be subordinate and subject in right of payment to the prior indefeasible payment in full in cash of the ▇▇▇▇▇▇ Guarantee Obligations. Each of the Company and the Subsidiary Guarantors hereby agrees that it shall not become obligated or otherwise liable for itself any intercompany Indebtedness, or other intercompany receivable, intercompany payable or intercompany advance that is owed to any Person other than the Company or any Subsidiary Guarantor, unless such Person agrees that such Indebtedness, receivable, payable or advance (as applicable) is completely subordinated to the ▇▇▇▇▇▇ Guarantee Obligations and subject in right of payment to the prior indefeasible payment in full in cash of the ▇▇▇▇▇▇ Guarantee Obligations, and that no payment on any such Indebtedness, receivable, payable or advance shall be made by the Company or any Subsidiary Guarantor until the earliest to occur of: (i) satisfaction and discharge of the Series 2002A Bonds pursuant to the Indenture, (ii) defeasance of the Series 2002A Bonds pursuant to the Indenture or (iii) payment in full in cash of all ▇▇▇▇▇▇ Guarantee Obligations that are outstanding, due and payable at the time the Series 2002A Bonds are paid in full in cash (for purposes of this Section 4.23, only, collectively the "Termination Date"); except: intercompany receivables, intercompany payables, intercompany advances and intercompany Indebtedness made to, or on behalf of each of its Subsidiaries (eachof, a “Subordinating Note Party”)any Person, covenants and agreesother than the Company or any Subsidiary Guarantor, permitted pursuant to the terms hereof may be paid or repaid, in their respective capacities each case so long as issuers or holders no Event of any principalDefault shall have occurred and be continuing; provided, interest (including interest which accrues after the commencement of any case or proceeding in bankruptcy or for the reorganization of any company), fees, charges, expenses, attorneys’ fees and any other sum chargeable to any Subordinating Note Party or due in respect of the aggregate unpaid amount of all advances, indebtedness, loans, payables and other extensions of credit and obligations made by a Subordinating Note Party to another Subordinating Note Party as holder (the “Intercompany Indebtedness”)however, that the payment of foregoing shall not apply to any Intercompany intercompany Indebtedness or other intercompany receivable, intercompany payable or intercompany advance with a Person, other than the Company or any Subsidiary Guarantor, where such Person is subordinated in right of payment, expressly prohibited from agreeing to the extent and in the manner provided in this Section 24.11, foregoing subordination pursuant to the terms and provisions of the definitive credit documentation with respect to Indebtedness of such Person for borrowed money listed on Schedule 7.3(k) to the Credit Agreement.
(b) In the event that any payment in full of all obligations under this Agreementon any such intercompany Indebtedness, receivable, payable or advance shall be received by the Company or any Subsidiary Guaranty and Guarantor other than as permitted by Section 4.23(a) before the Notes (collectivelyTermination Date, the “Obligations”)Company or such Subsidiary Guarantor, as applicable, shall receive such payments and that hold the subordination is same in trust for, segregate the same from its own assets and shall immediately pay over to, the Collateral Trustee for the benefit of the holders of the Notes. Without limitation of the foregoing, so long as no Event of Default has occurred and is continuing, (1) as to any Permitted Intercompany Financings, any Subordinating Note Party may make and receive any (x) payments of principal and interest, including, without limitation, prepayments of principal, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of Parity Secured Debt all such Permitted Intercompany Financings to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.11 and (2) as to Intercompany Indebtedness other than Permitted Intercompany Financings, any Subordinating Note Party may make and receive any (x) regularly scheduled payments of principal and interest as and when due, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Intercompany Indebtedness to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.11; provided, that in the event that any Subordinating Note Party receives any payment of any such Intercompany Indebtedness at a time when such payment is prohibited by this Section, such payment shall be held by such Subordinating Note Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the holders of Notes (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement has the same right to receive such payments, the Company shall be permitted to pay such payment or distribution to the applicable agent and to the holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision)).
(b) Each of the Subordinating Note Parties, for itself and on behalf of its Subsidiaries, by its acceptance of any Intercompany Indebtedness, (i) authorizes the Required Holders to demand specific performance of the terms of this Section 24.11 at any time when any holder of Intercompany Indebtedness shall have failed to comply with any provisions of this Section 24.11 which are applicable to it and (ii) irrevocably waives to the extent permitted under applicable law any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. Waste Connections, Inc. Note Purchase Agreement
(c) Upon any distribution of assets of any Subordinating Note Party in any dissolution, winding up, liquidation or reorganization (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or otherwise): (i) the holders of the Notes shall first be entitled to receive payment in full in cash of the Obligations before any holder of Intercompany Indebtedness is entitled to receive any payment on account of such Intercompany Indebtedness; (ii) any payment or distribution of assets of any Subordinating Note Party of any kind or character, whether in cash, property or securities, to which any such holder of Intercompany Indebtedness would be entitled except for the provisions of this Section 24.11(c), shall be paid by the liquidating trustee or agent or other Person making such payment or distribution directly to the holders of the Notes, sums to the extent necessary to make payment in full of all Obligations remaining unpaid after giving effect to any concurrent payment or distribution or provisions therefor to so that the holders of the Notes; (iii) Parity Secured Debt shall have been indefeasibly paid in the event thatfull, notwithstanding the foregoing provisions of this Section 24.11(c), any payment or distribution of assets of any Subordinating Note Party of any kind or character, whether in cash, property all ▇▇▇▇▇▇ Guarantee Obligations owed or securities, shall be received by any such holder of Intercompany Indebtedness on account of Intercompany Indebtedness before the discharge of the Obligations, such payment or distribution shall be received and held in trust for and shall be paid over to the holders of the Notes, for application to the payment of the Obligations, after giving effect to any concurrent payment or distribution or provision therefor to such holders of the Notes (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement has the same right to receive such payments, the Company shall be permitted to pay such payment or distribution to the applicable agent and holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision)), and (iv) no right of the holders of the Notes to enforce the subordination provisions herein shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of any Subordinating Note Party. If, for any reason, any of the trusts expressed to be created in this Section 24.11(c)(iii) should fail or be unenforceable, the affected Subordinating Note Party will promptly pay or distribute any such payment or distribution of assets to the holders of the Notes for application to the payment of the Obligations in accordance with the terms of this Sectionwhich may become owing.
(d) Notwithstanding the foregoing, the foregoing subordination shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Company or any Subsidiary Guarantor is made and such payment or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the holders of the Notes in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any debtor relief law or otherwise, all as if such payment had not been made regardless of any prior revocation, rescission, termination or reduction. The obligations under this paragraph shall survive termination of this Agreement.
Appears in 1 contract
Subordination of Intercompany Indebtedness. (a) The CompanyEach of the Borrower and each other Credit Party, for itself and on behalf of each of its Subsidiaries (eacheach such Credit Party and Subsidiary, a “Subordinating Note Loan Party”), covenants and agrees, in their respective capacities as issuers or holders of any principal, interest (including interest which accrues after the commencement of any case or proceeding in bankruptcy or for the reorganization of any company), fees, charges, expenses, attorneys’ fees and any other sum chargeable to any Subordinating Note Loan Party or due in respect of the aggregate unpaid amount of all advances, indebtedness, loans, payables and other extensions of credit and obligations made by a Subordinating Note Loan Party to another Subordinating Note Loan Party as holder (the “Intercompany Indebtedness”), that the payment of any Intercompany Indebtedness is subordinated in right of payment, to the extent and in the manner provided in this Section 24.1111.23, to the payment in full of all obligations under this Agreement, any Subsidiary Guaranty Obligations and the Notes termination of the Aggregate Commitments (collectively, other than (A) contingent indemnification obligations and (B) obligations and liabilities under Cash Management Agreements and Hedge Agreements) and the expiration or termination of all Letters of Credit (other than Letters of Credit as to which other arrangements satisfactory to the Agents and the applicable L/C Issuer shall have been made) (the “Discharge of the Senior Obligations”), and that the subordination is for the benefit of the holders of Agents and the NotesLenders. Without limitation of the foregoing, so long as no Event of Default has occurred and is continuing, (1) as to any Permitted Intercompany Financings, any Subordinating Note Loan Party may make and receive any (x) payments of principal and interest, including, without limitation, prepayments of principal, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Permitted Intercompany Financings to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.11 11.23 and (2) as to Intercompany Indebtedness other than Permitted Intercompany Financings, any Subordinating Note Loan Party may make and receive any (x) regularly scheduled payments of principal and interest as and when due, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Intercompany Indebtedness to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.1111.23; provided, that in the event that any Subordinating Note Loan Party receives any payment of any such Intercompany Indebtedness at a time when such payment is prohibited by this Section, such payment shall be held by such Subordinating Note Loan Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the holders of Notes Agents (provided that, in the event that any the Private Placement Notes or other holder of senior unsecured Indebtedness permitted under this Agreement Section 7.01 has the same right to receive such paymentsobligation, the Company Borrower shall be permitted to pay such payment or distribution to the applicable agent Agent and to the holders of such Private Placement Notes or other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such Private Placement Notes or other senior Indebtedness contains a similar pari passu provision)).
(b) Each of the Subordinating Note Parties, for itself and on behalf of its Subsidiaries, by its acceptance of any Intercompany Indebtedness, (i) authorizes the Required Holders to demand specific performance of the terms of this Section 24.11 at any time when any holder of Intercompany Indebtedness shall have failed to comply with any provisions of this Section 24.11 which are applicable to it and (ii) irrevocably waives to the extent permitted under applicable law any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. Waste Connections, Inc. Note Purchase Agreement
(c) Upon any distribution of assets of any Subordinating Note Party in any dissolution, winding up, liquidation or reorganization (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or otherwise): (i) the holders of the Notes shall first be entitled to receive payment in full in cash of the Obligations before any holder of Intercompany Indebtedness is entitled to receive any payment on account of such Intercompany Indebtedness; (ii) any payment or distribution of assets of any Subordinating Note Party of any kind or character, whether in cash, property or securities, to which any such holder of Intercompany Indebtedness would be entitled except for the provisions of this Section 24.11(c), shall be paid by the liquidating trustee or agent or other Person making such payment or distribution directly to the holders of the Notes, to the extent necessary to make payment in full of all Obligations remaining unpaid after giving effect to any concurrent payment or distribution or provisions therefor to the holders of the Notes; (iii) in the event that, notwithstanding the foregoing provisions of this Section 24.11(c), any payment or distribution of assets of any Subordinating Note Party of any kind or character, whether in cash, property or securities, shall be received by any such holder of Intercompany Indebtedness on account of Intercompany Indebtedness before the discharge of the Obligations, such payment or distribution shall be received and held in trust for and shall be paid over to the holders of the Notes, for application to the payment of the Obligations, after giving effect to any concurrent payment or distribution or provision therefor to such holders of the Notes (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement has the same right to receive such payments, the Company shall be permitted to pay such payment or distribution to the applicable agent and holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision)), and (iv) no right of the holders of the Notes to enforce the subordination provisions herein shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of any Subordinating Note Party. If, for any reason, any of the trusts expressed to be created in this Section 24.11(c)(iii) should fail or be unenforceable, the affected Subordinating Note Party will promptly pay or distribute any such payment or distribution of assets to the holders of the Notes for application to the payment of the Obligations in accordance with the terms of this Section.
(d) Notwithstanding the foregoing, the foregoing subordination shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Company or any Subsidiary Guarantor is made and such payment or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the holders of the Notes in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any debtor relief law or otherwise, all as if such payment had not been made regardless of any prior revocation, rescission, termination or reduction. The obligations under this paragraph shall survive termination of this Agreement.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Waste Connections, Inc.)
Subordination of Intercompany Indebtedness. (a) The Company, for itself and on behalf of each of its Subsidiaries (each, a “Subordinating Note Party”), covenants and agrees, in their respective capacities as issuers or holders of any principal, interest (including interest which accrues after the commencement of any case or proceeding in bankruptcy or for the reorganization of any company), fees, charges, expenses, attorneys’ fees and any other sum chargeable to any Subordinating Note Party or due in respect of the aggregate unpaid amount of all advances, indebtedness, loans, payables and other extensions of credit and obligations made by a Subordinating Note Party to another Subordinating Note Party as holder (the “Intercompany Indebtedness”), that the payment of any Intercompany Indebtedness is subordinated in right of payment, to the extent and in the manner provided in this Section 24.1123.10, to the payment in full of all obligations under this Agreement, any Subsidiary Guaranty and the Notes (collectively, the “Obligations”), and that the subordination is for the benefit of the holders of the Notes. Without limitation of the foregoing, so long as no Event of Default has occurred and is continuing, (1) as to any Permitted Intercompany Financings, any Subordinating Note Party may make and receive any (x) payments of principal and interest, including, without limitation, prepayments of principal, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Permitted Intercompany Financings to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.11 23.10 and (2) as to Intercompany Indebtedness other than Permitted Intercompany Financings, any Subordinating Note Party may make and receive any (x) regularly scheduled payments of principal and interest as and when due, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Intercompany Indebtedness to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.1123.10; provided, that in the event that any Subordinating Note Party receives any payment of any such Intercompany Indebtedness at a time when such payment is prohibited by this Section, such payment shall be held by such Subordinating Note Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the holders of Notes (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement has the same right to receive such payments, the Company shall be permitted to pay such payment or distribution to the applicable agent and to the holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision)).. Waste Connections, Inc. Note Purchase Agreement
(b) Each of the Subordinating Note Parties, for itself and on behalf of its Subsidiaries, by its acceptance of any Intercompany Indebtedness, (i) authorizes the Required Holders to demand specific performance of the terms of this Section 24.11 23.10 at any time when any holder of Intercompany Indebtedness shall have failed to comply with any provisions of this Section 24.11 23.10 which are applicable to it and (ii) irrevocably waives to the extent permitted under applicable law any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. Waste Connections, Inc. Note Purchase Agreement.
(c) Upon any distribution of assets of any Subordinating Note Party in any dissolution, winding up, liquidation or reorganization (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or otherwise): (i) the holders of the Notes shall first be entitled to receive payment in full in cash of the Obligations before any holder of Intercompany Indebtedness is entitled to receive any payment on account of such Intercompany Indebtedness; (ii) any payment or distribution of assets of any Subordinating Note Party of any kind or character, whether in cash, property or securities, to which any such holder of Intercompany Indebtedness would be entitled except for the provisions of this Section 24.11(c23.10(c), shall be paid by the liquidating trustee or agent or other Person making such payment or distribution directly to the holders of the Notes, to the extent necessary to make payment in full of all Obligations remaining unpaid after giving effect to any concurrent payment or distribution or provisions therefor to the holders of the Notes; (iii) in the event that, notwithstanding the foregoing provisions of this Section 24.11(c23.10(c), any payment or distribution of assets of any Subordinating Note Party of any kind or character, whether in cash, property or securities, shall be received by any such holder of Intercompany Indebtedness on account of Intercompany Indebtedness before the discharge of the Obligations, such payment or distribution shall be received and held in trust for and shall be paid over to the holders of the Notes, for application to the payment of the Obligations, after giving effect to any concurrent payment or distribution or provision therefor to such holders of the Notes (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement has the same right to receive such payments, the Company shall be permitted to pay such payment or distribution to the applicable agent and holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision)), and (iv) no right of the holders of the Notes to enforce the subordination provisions herein shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of any Subordinating Note Party. If, for any reason, any of the trusts expressed to be created in this Section 24.11(c)(iii23.10(c)(iii) should fail or be unenforceable, the affected Subordinating Note Party will promptly pay or distribute any such payment or distribution of assets to the holders of the Notes for application to the payment of the Obligations in accordance with the terms of this Section.. Waste Connections, Inc. Note Purchase Agreement
(d) Notwithstanding the foregoing, the foregoing subordination shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Company or any Subsidiary Guarantor is made and such payment or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the holders of the Notes in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any debtor relief law or otherwise, all as if such payment had not been made regardless of any prior revocation, rescission, termination or reduction. The obligations under this paragraph shall survive termination of this Agreement. Waste Connections, Inc. Note Purchase Agreement If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Agreement and return it to the Company, whereupon this Agreement shall become a binding agreement between you and the Company. Very truly yours, WASTE CONNECTIONS, INC., an Ontario corporation By: /s/ Worthing J▇▇▇▇▇▇ Name: Worthing J▇▇▇▇▇▇ Title: Chief Financial Officer Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. Metropolitan Life Insurance Company General America Life Insurance Company by Metropolitan Life Insurance Company, its Investment Manager MetLife Insurance Company USA by Metropolitan Life Insurance Company, its Investment Manager By /s/ J▇▇▇ ▇. ▇▇▇▇▇ Name: J▇▇▇ ▇. ▇▇▇▇▇ Title: Managing Director MetLife Insurance K.K. by MetLife Investment Advisors, LLC, Its Investment Manager By /s/ C. S▇▇▇▇ ▇▇▇▇▇▇ Name: C. S▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Director Erie Family Life Insurance Company by MetLife Investment Advisors, LLC, Its Investment Manager Lincoln Benefit Life Company by MetLife Investment Advisors, LLC, Its Investment Manager By /s/ C. S▇▇▇▇ ▇▇▇▇▇▇ Name: C. S▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Director Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. New York Life Insurance Company By /s/ A. Post H▇▇▇▇▇▇ Name: A. Post H▇▇▇▇▇▇ Title: Vice President New York Life Insurance and Annuity Corporation By: NYL Investors LLC, its Investment Manager By: /s/ A. Post H▇▇▇▇▇▇ Name: A. Post H▇▇▇▇▇▇ Title: Managing Director The Bank of New York Mellon, a banking corporation organized under the laws of New York, not in its individual capacity but solely as Trustee under that certain Trust Agreement dated as of July 1st, 2015 between New York Life Insurance Company, as Grantor, J▇▇▇ H▇▇▇▇▇▇ Life Insurance Company (U.S.A.), as Beneficiary, J▇▇▇ Nancock Life Insurance Company of New York, as Beneficiary, and The Bank of New York Mellon, as Trustee By: New York Life Insurance Company, its attorney-in-fact By: /s/ A. Post H▇▇▇▇▇▇ Name: A. Post H▇▇▇▇▇▇ Title: Managing Director Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. New York Life Insurance and Annuity Corporation Institutionally Owned Life Insurance Separate Account (BOLI 30C) By: NYL Investors LLC, its Investment Manager By: /s/ A. Post H▇▇▇▇▇▇ Name: A. Post H▇▇▇▇▇▇ Title: Managing Director New York Life Insurance and Annuity Corporation Institutionally Owned Life Insurance Separate Account (BOLI 3) By: NYL Investors LLC, its Investment Manager By: /s/ A. Post H▇▇▇▇▇▇ Name: A. Post H▇▇▇▇▇▇ Title: Managing Director Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. The Northwestern Mutual Life Insurance Company By: Northwestern Mutual Investment Management Company, LLC, its investment adviser By /s/ D▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: D▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Managing Director The Northwestern Mutual Life Insurance Company for its Group Annuity Separate Account By /s/ D▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: D▇▇▇▇ ▇. ▇▇▇▇▇▇ HIts Authorized Representative Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. Voya Retirement Insurance and Annuity Company Reliastar Life Insurance Company Voya Insurance and Annuity Company Security Life of Denver Insurance Company Reliasar Life Insurance Company of New York By: Voya Investment Management LLC, as Agent By: /s/ P▇▇▇ ▇▇▇▇▇▇▇ Name: P▇▇▇ ▇▇▇▇▇▇▇ Title: Senior Vice President NN Life Insurance Company Ltd. By: Voya Investment Management LLC, as Attorney in fact By: /s/ P▇▇▇ ▇▇▇▇▇▇▇ Name: P▇▇▇ ▇▇▇▇▇▇▇ Title: Senior Vice President AETNA 401(K) Master Trust United Technologies Corporation Employee Savings Plan Master Trust By: Voya Investment Management Co. LLC, as Agent By: /s/ P▇▇▇ ▇▇▇▇▇▇▇ Name: P▇▇▇ ▇▇▇▇▇▇▇ Title: Senior Vice President Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. Principal Life Insurance Company By: Principal Global Investors, LLC a Delaware limited liability company, its authorized signatory By: /s/ C▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: C▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: Counsel By: /s/ A▇▇▇ ▇. ▇▇▇▇ Name: A▇▇▇ ▇. ▇▇▇▇ Title: Counsel Principal Life Insurance Company, on behalf of one or more separate accounts By: Principal Global Investors, LLC a Delaware limited liability company, its authorized signatory By: /s/ C▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: C▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: Counsel By: /s/ A▇▇▇ ▇. ▇▇▇▇ Name: A▇▇▇ ▇. ▇▇▇▇ Title: Counsel Symetra Life Insurance Company, a Washington corporation By: Principal Global Investors, LLC, a Delaware limited liability company, its authorized signatory By: /s/ C▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: C▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: Counsel By: /s/ A▇▇▇ ▇. ▇▇▇▇ Name: A▇▇▇ ▇. ▇▇▇▇ Title: Counsel Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. Hartford Life Insurance Company Hartford Insurance Company of Illinois Hartford Life and Annuity Insurance Company Hartford Accident and Indemnity Company Hartford Life and Accident Insurance Company Hartford Casualty Insurance Company Separate Account B, a separate account of Hartford Life Insurance Company By: Hartford Investment Management Company, Their Agent and Attorney-in-Fact By: /s/ J▇▇▇ ▇▇▇▇ Name: J▇▇▇ ▇▇▇▇ Title: Senior Vice President Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. The Lincoln National Life Insurance Company By: Delaware Investment Advisers, a series of Delaware Management Business Trust, Attorney in Fact By: /s/ A▇▇▇ ▇▇▇▇▇▇ Name: A▇▇▇ ▇▇▇▇▇▇ Title: Vice President Lincoln Life & Annuity Company of New York By: Delaware Investment Advisers, a series of Delaware Management Business Trust, Attorney in Fact By: /s/ A▇▇▇ ▇▇▇▇▇▇ Name: A▇▇▇ ▇▇▇▇▇▇ Title: Vice President Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. State Farm Life Insurance Company By: /s/ J▇▇▇▇ ▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇ Title: Investment Executive – Fixed Income By: /s/ J▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: J▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Investment Professional – Fixed Income State Farm Life and Accident Assurance Company By: /s/ J▇▇▇▇ ▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇ Title: Investment Executive – Fixed Income By: /s/ J▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: J▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Investment Professional – Fixed Income Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. Ameritas Life Insurance Corp. Ameritas Life Insurance Corp. of New York By: Ameritas Investment Partners Inc., as Agent By: /s/ T▇▇▇ ▇▇▇▇▇ Name: T▇▇▇ ▇▇▇▇▇ Title: Vice President & Managing Director Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. By: /s/ A▇▇ ▇▇▇▇ Name: A▇▇ ▇▇▇▇ Title: Investment Officer By: /s/ A▇▇ ▇▇▇▇ Name: A▇▇ ▇▇▇▇ Title: Investment Officer Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. RiverSource Life Insurance Company By: /s/ K▇▇▇ ▇. ▇▇▇▇▇ Name: K▇▇▇ ▇. ▇▇▇▇▇ Title: Vice President – Investments RiverSource Life Insurance Co. of New York By: /s/ K▇▇▇ ▇. ▇▇▇▇▇ Name: K▇▇▇ ▇. ▇▇▇▇▇ Title: Vice President – Investments Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. American United Life Insurance Company By: /s/ D▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ Name: D▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ Title: V.P., Fixed Income Securities The State Life Insurance Company By: American United Life Insurance Company Its: Agent By: /s/ D▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ Name: D▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ Title: V.P., Fixed Income Securities Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. The Guardian Life Insurance Company of America By: /s/ E▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Senior Director Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. Connecticut General Life Insurance Company By: Cigna Investments, Inc. (authorized agent) By: /s/ E▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: E▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Title: Managing Director Life Insurance Company of North America By: Cigna Investments, Inc. (authorized agent) By: /s/ E▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: E▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Title: Managing Director Waste Connections, Inc. Note Purchase Agreement This Agreement is hereby accepted and agreed to as of the date hereof. J▇▇▇▇▇▇ National Life Insurance Company By: PPM America, Inc., as attorney in fact, on behalf of J▇▇▇▇▇▇ National Life Insurance Company By: /s/ L▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: L▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Title: Sr. Managing Director J▇▇▇▇▇▇ National Life Insurance Company of New York By: PPM America, Inc., as attorney in fact, on behalf of J▇▇▇▇▇▇ National Life Insurance Compa
Appears in 1 contract
Sources: Master Note Purchase Agreement (Waste Connections, Inc.)
Subordination of Intercompany Indebtedness. (a) The Company, for itself Borrower and each Subordinating Loan Party covenants and agrees (on its own behalf and on behalf of each of its Subsidiaries (each, that is or becomes a “Subordinating Note Loan Party”), covenants and agrees, in their respective capacities as issuers or holders (as applicable) of any principal, interest (including interest which accrues after the commencement of any case or proceeding in bankruptcy or for the reorganization of any company), fees, charges, expenses, attorneys’ fees and any other sum chargeable to any Subordinating Note Party owed by the Borrower or due in respect of the aggregate unpaid amount of all advances, indebtedness, loans, payables and other extensions of credit and obligations made owed by a the Borrower to any Subordinating Note Loan Party to another Subordinating Note Party as holder (the “Intercompany Indebtedness”), that the payment of any Intercompany Indebtedness is subordinated in right of payment, to the extent and in the manner provided in this Section 24.1111.23, to the payment in full of all obligations under this Agreement, any Subsidiary Guaranty Obligations and the Notes termination of the Commitments (collectively, other than contingent or inchoate indemnification obligations for which no claim has been asserted) (the “Discharge of the Senior Obligations”), and that the subordination herein is for the benefit of the holders of Agent and the NotesLenders. Without limitation of the foregoingforegoing with respect to any Intercompany Indebtedness, so long as no Event of Default has occurred and is continuing, (1) as to any Permitted Intercompany Financings, any Subordinating Note Party the Borrower may make and any Subordinating Loan Party may receive any (x) payments of principal and interest, including, without limitation, prepayments of principal, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Permitted Intercompany Financings to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.11 and (2) as to Intercompany Indebtedness other than Permitted Intercompany Financings, any Subordinating Note Party may make and receive any (x) regularly scheduled payments of principal and interest as and when due, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Intercompany Indebtedness to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.1111.23; provided, that in the event that any Subordinating Note Loan Party receives any payment of any such Intercompany Indebtedness at a time when such payment is prohibited by this SectionSection 11.23, such payment shall be held by such Subordinating Note Loan Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the holders of Notes Agent (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement the Loan Documents has the same right to receive such payments, the Company Borrower shall be permitted to pay make such payment or distribution to the applicable agent and to the holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision)amount, if any payment is required thereunder).
(b) Each of the Subordinating Note Parties, The Borrower (for itself and on behalf of its Subsidiaries, each Subordinating Loan Party) and each of the Subordinating Loan Parties (by its such Subordinating Loan Party’s acceptance of any Intercompany Indebtedness, Indebtedness owing from the Borrower) hereby (i) authorizes the Required Holders Agent to demand specific performance of the terms of this Section 24.11 11.23 at any time when any holder of Intercompany Indebtedness shall have failed to comply with any provisions of this Section 24.11 11.23 which are applicable to it and (ii) irrevocably waives to the extent permitted under applicable law any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. Waste Connections, Inc. Note Purchase Agreement.
(c) Upon The Borrower (for itself and on behalf of each Subordinating Loan Party) and each of the Subordinating Loan Parties (by such Subordinating Loan Party’s acceptance of any Intercompany Indebtedness owing from the Borrower) agrees that upon any distribution of assets of any Subordinating Note Party the Borrower in any dissolution, winding up, liquidation or reorganization (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or otherwise): (i) the holders of Agent and the Notes Lenders shall first be entitled to receive payment in full in cash of the Obligations before any holder of such Intercompany Indebtedness is entitled to receive any payment on account of such Intercompany Indebtedness; , (ii) any payment or distribution of assets of any Subordinating Note Party the Borrower of any kind or character, whether in cash, property or securities, to which any such holder of Intercompany Indebtedness would be entitled except for the provisions of this Section 24.11(csubsection 11.23(c), shall be paid by the liquidating trustee or agent or other Person making such payment or distribution directly to the holders of the NotesAgent, to the extent necessary to make payment in full of all Obligations remaining unpaid after giving effect to any concurrent payment or distribution or provisions therefor to the holders of Agent, for itself and the Notes; other Lenders, (iii) in the event that, notwithstanding the foregoing provisions of this Section 24.11(csubsection 11.23(c), any payment or distribution of assets of any Subordinating Note Party the Borrower of any kind or character, whether in cash, property or securities, shall be received by any such holder of Intercompany Indebtedness on account of Intercompany Indebtedness before the discharge Discharge of the Senior Obligations, such payment or distribution shall be received and held in trust for and shall be paid over to the holders of the NotesAgent, for application to the payment of the Obligations, after giving effect to any concurrent payment or distribution or provision therefor to such holders of the Notes Agent (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement the Loan Documents has the same right to receive such payments, the Company Borrower shall be permitted to pay make such payment or distribution to the applicable agent and to the holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision))amount, if any payment is required thereunder) and (iv) no right of the holders of the Notes Agent to enforce the subordination provisions herein shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Borrower or any Subordinating Note Loan Party. If, for any reason, any of the trusts expressed to be created in this Section 24.11(c)(iii11.23(c)(iii) should fail or be unenforceable, the affected Subordinating Note Loan Party will promptly pay or distribute any such payment or distribution of assets to the holders of the Notes Agent, for application to the payment of the Obligations for application in accordance with the terms of this SectionSection 11.23.
(d) Notwithstanding the foregoing, the foregoing subordination shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Company Borrower is made, or any Subsidiary Guarantor is made of the Agent or any of the Lenders exercises its right of setoff, in respect of the Obligations and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the holders any of the Notes Agent or any of the Lenders in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any debtor relief law Debtor Relief Laws or otherwise, all as if such payment had not been made or such setoff had not occurred regardless of any prior revocation, rescission, termination or reduction. The obligations under this paragraph shall survive termination of this Agreement.
(e) Each Subordinating Loan Party, as of the Closing Date or, if later, contemporaneously with becoming a Subordinating Loan Party (or such later time as the Agent may agree in its reasonable discretion), shall provide to the Agent an acknowledgment letter in form and substance reasonably satisfactory to the Agent whereby such Subordinating Loan Party acknowledges and agrees to be bound by the provisions of this Section 11.23.
Appears in 1 contract
Subordination of Intercompany Indebtedness. (a) The Company, for itself Company and each Subordinating Note Party covenants and agrees (on its own behalf and on behalf of each of its Subsidiaries (each, that is or becomes a “Subordinating Note Party”), covenants and agrees, in their respective capacities as issuers or holders (as applicable) of any principal, interest (including interest which accrues after the commencement of any case or proceeding in bankruptcy or for the reorganization of any company), fees, charges, expenses, attorneys’ fees and any other sum chargeable to any Subordinating Note Party owed by the Company or due in respect of the aggregate unpaid amount of all advances, indebtedness, loans, payables and other extensions of credit and obligations made owed by a the Company to any Subordinating Note Party to another Subordinating Note Party as holder (the “Intercompany Indebtedness”), that the payment of any Intercompany Indebtedness is subordinated in right of payment, to the extent and in the manner provided in this Section 24.11, to the payment in full of all obligations under this Agreement, any Subsidiary Guaranty and the Notes (collectively, the “Obligations”), and that the subordination herein is for the benefit of the holders of the Notes. Without limitation of the foregoingforegoing with respect to any Intercompany Indebtedness, so long as no Event of Default has occurred and is continuing, (1) as to any Permitted Intercompany Financings, the Company may make and any Subordinating Note Party may make and receive any (x) payments of principal and interest, including, without limitation, prepayments of principal, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Permitted Intercompany Financings to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.11 and (2) as to Intercompany Indebtedness other than Permitted Intercompany Financings, any Subordinating Note Party may make and receive any (x) regularly scheduled payments of principal and interest as and when due, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Intercompany Indebtedness to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.11; provided, that in the event that any Subordinating Note Party receives any payment of any such Intercompany Indebtedness at a time when such payment is prohibited by this SectionSection 24.11, such payment shall be held by such Subordinating Note Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the holders of Notes (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement has the same right to receive such payments, the Company shall be permitted to pay make such payment or distribution to the applicable agent and to the holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provisionamount, if any payment is required thereunder)).. Waste Connections, Inc. Note Purchase Agreement
(b) Each of the Subordinating Note Parties, The Company (for itself and on behalf of its Subsidiaries, each Subordinating Note Party) and each of the Subordinating Note Parties (by its such Subordinating Note Party’s acceptance of any Intercompany Indebtedness, Indebtedness owing from the Company) hereby (i) authorizes the Required Holders to demand specific performance of the terms of this Section 24.11 at any time when any holder of Intercompany Indebtedness shall have failed to comply with any provisions of this Section 24.11 which are applicable to it and (ii) irrevocably waives to the extent permitted under applicable law any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. Waste Connections, Inc. Note Purchase Agreement.
(c) Upon The Company (for itself and on behalf of each Subordinating Note Party) and each of the Subordinating Note Parties (by such Subordinating Note Party’s acceptance of any Intercompany Indebtedness owing from the Company) agrees that upon any distribution of assets of any Subordinating Note Party the Company in any dissolution, winding up, liquidation or reorganization (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or otherwise): (i) the holders of the Notes shall first be entitled to receive payment in full in cash of the Obligations before any holder of such Intercompany Indebtedness is entitled to receive any payment on account of such Intercompany Indebtedness; (ii) any payment or distribution of assets of any Subordinating Note Party the Company of any kind or character, whether in cash, property or securities, to which any such holder of Intercompany Indebtedness would be entitled except for the provisions of this Section 24.11(c), shall be paid by the liquidating trustee or agent or other Person making such payment or distribution directly to the holders of the Notes, to the extent necessary to make payment in full of all Obligations remaining unpaid after giving effect to any concurrent payment or distribution or provisions therefor to the holders of the Notes; (iii) in the event that, notwithstanding the foregoing provisions of this Section 24.11(c), any payment or distribution of assets of any Subordinating Note Party the Company of any kind or character, whether in cash, property or securities, shall be received by any such holder of Intercompany Indebtedness on account of Intercompany Indebtedness before the discharge of the Obligations, such payment or distribution shall be received and held in trust for and shall be paid over to the holders of the Notes, for application to the payment of the Obligations, after giving effect to any concurrent payment or distribution or provision therefor to such holders of the Notes (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement has the same right to receive such payments, the Company shall be permitted to pay make such payment or distribution to the applicable agent and to the holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision)amount, if any payment is required thereunder), and (iv) no right of the holders of the Notes to enforce the subordination provisions herein shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any Subordinating Note Party. If, for any reason, any of the trusts expressed to be created in this Section 24.11(c)(iii) should fail or be unenforceable, the affected Subordinating Note Party will promptly pay or distribute any such payment or distribution of assets to the holders of the Notes for application to the payment of the Obligations in accordance with the terms of this Section.Section 24.11. Waste Connections, Inc. Note Purchase Agreement
(d) Notwithstanding the foregoing, the foregoing subordination shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Company or any Subsidiary Guarantor is made in respect of the Obligations and such payment or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the holders of the Notes in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any debtor relief law or otherwise, all as if such payment had not been made regardless of any prior revocation, rescission, termination or reduction. The obligations under this paragraph shall survive termination of this Agreement.
(e) Each Subordinating Note Party, as of the Seventh Amendment Date or, if later, contemporaneously with becoming a Subordinating Note Party (or such later time as the Required Holders may agree in their reasonable discretion), shall provide to the holders an acknowledgment letter in form and substance substantially similar to the acknowledgment letter provided to the holders in connection with the Seventh Amendment, whereby such Subordinating Note Party acknowledges and agrees to be bound by the provisions of this Section 24.11.
Appears in 1 contract
Sources: Master Note Purchase Agreement (Waste Connections, Inc.)
Subordination of Intercompany Indebtedness. (a) The Company, for itself Company and each Subordinating Note Party covenants and agrees (on its own behalf and on behalf of each of its Subsidiaries (each, that is or becomes a “Subordinating Note Party”), covenants and agrees, in their respective capacities as issuers or holders (as applicable) of any principal, interest (including interest which accrues after the commencement of any case or proceeding in bankruptcy or for the reorganization of any company), fees, charges, expenses, attorneys’ fees and any other sum chargeable to any Subordinating Note Party owed by the Company or due in respect of the aggregate unpaid amount of all advances, indebtedness, loans, payables and other extensions of credit and obligations made owed by a the Company to any Subordinating Note Party to another Subordinating Note Party as holder (the “Intercompany Indebtedness”), that the payment of any Intercompany Indebtedness is subordinated in right of payment, to the extent and in the manner provided in this Section 24.1123.10, to the payment in full of all obligations under this Agreement, any Subsidiary Guaranty and the Notes (collectively, the “Obligations”), and that the subordination herein is for the benefit of the holders of the Notes. Without limitation of the foregoingforegoing with respect to any Intercompany Indebtedness, so long as no Event of Default has occurred and is continuing, (1) as to any Permitted Intercompany Financings, the Company may make and any Subordinating Note Party may make and receive any (x) payments of principal and interest, including, without limitation, prepayments of principal, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Permitted Intercompany Financings to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.11 and (2) as to Intercompany Indebtedness other than Permitted Intercompany Financings, any Subordinating Note Party may make and receive any (x) regularly scheduled payments of principal and interest as and when due, (y) applicable expense or indemnity payments payable in accordance with the terms thereof and (z) refinancings, replacements, renewals or extensions of such Intercompany Indebtedness to the extent permitted by this Agreement and subordinate to the Obligations in accordance with this Section 24.1123.10; provided, that in the event that any Subordinating Note Party receives any payment of any such Intercompany Indebtedness at a time when such payment is prohibited by this SectionSection 23.10, such payment shall be held by such Subordinating Note Party, in trust for the benefit of, and shall be paid forthwith over and delivered, upon written request, to the holders of Notes (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement has the same right to receive such payments, the Company shall be permitted to pay make such payment or distribution to the applicable agent and to the holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision)amount, if any payment is required thereunder).
(b) Each of the Subordinating Note Parties, The Company (for itself and on behalf of its Subsidiaries, each Subordinating Note Party) and each of the Subordinating Note Parties (by its such Subordinating Note Party’s acceptance of any Intercompany Indebtedness, Indebtedness owing from the Company) hereby (i) authorizes the Required Holders to demand specific performance of the terms of this Section 24.11 23.10 at any time when any holder of Intercompany Indebtedness shall have failed to comply with any provisions of this Section 24.11 23.10 which are applicable to it and (ii) irrevocably waives to the extent permitted under applicable law any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific performance. Waste Connections, Inc. Note Purchase Agreement
(c) Upon The Company (for itself and on behalf of each Subordinating Note Party) and each of the Subordinating Note Parties (by such Subordinating Note Party’s acceptance of any Intercompany Indebtedness owing from the Company) agrees that upon any distribution of assets of any Subordinating Note Party the Company in any dissolution, winding up, liquidation or reorganization (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or otherwise): (i) the holders of the Notes shall first be entitled to receive payment in full in cash of the Obligations before any holder of such Intercompany Indebtedness is entitled to receive any payment on account of such Intercompany Indebtedness; (ii) any payment or distribution of assets of any Subordinating Note Party the Company of any kind or character, whether in cash, property or securities, to which any such holder of Intercompany Indebtedness would be entitled except for the provisions of this Section 24.11(c23.10(c), shall be paid by the liquidating trustee or agent or other Person making such payment or distribution directly to the holders of the Notes, to the extent necessary to make payment in full of all Obligations remaining unpaid after giving effect to any concurrent payment or distribution or provisions therefor to the holders of the Notes; (iii) in the event that, notwithstanding the foregoing provisions of this Section 24.11(c23.10(c), any payment or distribution of assets of any Subordinating Note Party the Company of any kind or character, whether in cash, property or securities, shall be received by any such holder of Intercompany Indebtedness on account of Intercompany Indebtedness before the discharge of the Obligations, such payment or distribution shall be received and held in trust for and shall be paid over to the holders of the Notes, for application to the payment of the Obligations, after giving effect to any concurrent payment or distribution or provision therefor to such holders of the Notes (provided that, in the event that any other holder of senior Indebtedness permitted under this Agreement has the same right to receive such payments, the Company shall be permitted to pay make such payment or distribution to the applicable agent and to the holders of such other senior Indebtedness on a pari passu basis, pro rata, based on outstanding principal amount (so long as such other senior Indebtedness contains a similar pari passu provision)amount, if any payment is required thereunder), and (iv) no right of the holders of the Notes to enforce the subordination provisions herein shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or any Subordinating Note Party. If, for any reason, any of the trusts expressed to be created in this Section 24.11(c)(iii23.10(c)(iii) should fail or be unenforceable, the affected Subordinating Note Party will promptly pay or distribute any such payment or distribution of assets to the holders of the Notes for application to the payment of the Obligations in accordance with the terms of this SectionSection 23.10.
(d) Notwithstanding the foregoing, the foregoing subordination shall continue in full force and effect or be revived, as the case may be, if any payment by or on behalf of the Company or any Subsidiary Guarantor is made in respect of the Obligations and such payment or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the holders of the Notes in their discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any debtor relief law or otherwise, all as if such payment had not been made regardless of any prior revocation, rescission, termination or reduction. The obligations under this paragraph shall survive termination of this Agreement.
(e) Each Subordinating Note Party, as of the First Amendment Date or, if later, contemporaneously with becoming a Subordinating Note Party (or such later time as the Required Holders may agree in their reasonable discretion), shall provide to the holders an acknowledgment letter in form and substance substantially similar to the acknowledgment letter provided to the holders in connection with the First Amendment, whereby such Subordinating Note Party acknowledges and agrees to be bound by the provisions of this Section 23.10. Waste Connections, Inc. Note Purchase Agreement
Appears in 1 contract
Sources: Master Note Purchase Agreement (Waste Connections, Inc.)