Subordination. Borrower and, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders).
Appears in 2 contracts
Sources: Receivables Sale Agreement (Borgwarner Inc), Receivables Sale Agreement (Borgwarner Inc)
Subordination. The payment of any amounts due with respect to any Debt of any Borrower now or hereafter held by any Contingent Obligor is hereby subordinated to the prior payment in full of the Guaranteed Obligations and payment in full of the principal of, and interest on, the Advances, provided that so long as no default in the payment or performance of the Guaranteed Obligations has occurred and is continuing and no Default or Event of Default with respect to payment of the principal of, and interest on, the Advances has occurred and is continuing, or no demand for payment of any of the Guaranteed Obligations has been made that remains unsatisfied, such Borrower may make, and the Contingent Obligors may demand and accept, any payments of principal of and interest on such subordinated Debt in the amounts, at the rates and on the dates agreed by such Borrower and any Contingent Obligor, and, by its acceptance if applicable, as specified in such instruments, securities or other writings as shall evidence such subordinated Debt. Each Contingent Obligor agrees that after the occurrence of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined default in the Receivables Purchase Agreement hereinafter described) owed payment or performance of the Guaranteed Obligations or a Default or Event of Default with respect to Wachovia Bankpayment of the principal of, National Association, as Administrative Agent (together with its successors in such capacityand interest on, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”)Advances, pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may Contingent Obligor will not demand, ▇▇▇ for, collect, receive for or otherwise attempt to collect any such Debt of any Borrower to such Contingent Obligor until the Guaranteed Obligations and receipt for any and all such payments or distributionsthe principal of, and fileinterest on, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests Advances shall have been paid and performed in full and in cashfull. In If, notwithstanding the event that the Lender receives foregoing sentence, any payment Contingent Obligor shall collect, enforce or other distribution of receive any kind or character from Borrower or from other source whatsoever, amounts in respect of this Note, other than as expressly permitted by the terms of this Notesuch Debt, such payment or other distribution amounts shall be collected, enforced and received by such Contingent Obligor as trustee for the sole benefit of the Senior Interest Holders Lenders and shall be turned paid over by the Lender to the Administrative Agent (for the benefit of the Senior Interest HoldersLenders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights on account of the Senior Interest Holders Guaranteed Obligations without affecting in respect of any manner the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each liability of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of setContingent Obligor under Article II-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders).A.
Appears in 2 contracts
Sources: Credit Agreement (Americredit Corp), Credit Agreement (Americredit Financial Services Inc)
Subordination. Borrower and(a) Each of the Tranche B Lenders agrees, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time each future holder of the Tranche B Obligations, that unless and until the Tranche A Obligations have been paid in full, the Tranche A Construction Loan Commitment has been terminated and all Primary Letters of Credit issued have been terminated or cash collateralized (in an amount up to time party thereto (105% of the “Purchasers” or “Senior Interest Holders”aggregate Stated Amounts thereof), pursuant that certain Receivables Purchase Agreement dated as without the express prior written consent of December 21the Administrative Agent and each of the Tranche A Lenders, 2009 by and among no Tranche B Lender will take, demand or receive from the Borrower, the Purchasers and the Administrative AgentBorrower will not make, BorgWarner Inc. as collection agent (as amendedgive or permit, restated directly or otherwise modified from time to timeindirectly, by set-off, redemption, purchase or in any other manner, any payment of or security for the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all whole or any part of the unpaid principal amount Tranche B Obligations, including, without limitation, any letter of credit or similar credit support facility to support payment of the Tranche B Obligations. The provisions of this Note without premium or penalty at any time; provided, that interest Section 11.20 shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who persons who, in reliance upon such provisions, become the holders of, or who continue to hold, Senior InterestsTranche A Obligations, and these such provisions are made for the benefit of the Senior Interest Holdersholders of Tranche A Obligations, and such holders are hereby made obligees hereunder the Administrative Agent or the Purchaser same as if their names were written herein as such, and they and/or each of them may proceed to enforce such provisions on behalf provisions.
(b) The expressions "prior payment in full," "payment in full," "paid in full" and any other similar terms or phrases when used in this Section 11.20 or with respect to the Tranche A Obligations shall mean the payment in full, in immediately available funds, of all of the Tranche A Obligations, the termination of all Commitments and the termination, or cash collateralization of any Primary Letters of Credit outstanding (in an amount up to 105% of the aggregate Stated Amounts thereof).
(c) The Tranche B Lenders and the Borrower agree that if the Borrower or any of its Subsidiaries becomes subject to a Bankruptcy Event:
(i) unless each of the Tranche A Lenders agrees in writing otherwise, all Tranche A Obligations shall be paid in full before any direct or indirect payment or distribution from any assets of the Borrower, its Subsidiaries or NEG is made with respect to the Tranche B Obligations;
(ii) any direct or indirect payment or distribution of assets of the Borrower whether in cash, property or securities, to which any Tranche B Lender would be entitled with respect to Tranche B Obligations except for the provisions hereof, shall be paid or delivered by the Borrower, or any receiver, trustee in bankruptcy, liquidating trustee, disbursing agent or other Person making such Personspayment or distribution, directly to the Administrative Agent, for the account of the Tranche A Lenders, to the extent necessary to pay in full all Tranche A Obligations, before any payment or distribution shall be made to any Tranche B Lender; and
(viiii) the Lender will not Tranche A Lenders may file claims with respect to the Tranche B Obligations in any insolvency proceeding of the Borrower, any of its Subsidiaries or NEG if the Tranche B Lenders fail to file such claims fourteen days prior to the last date set for the filing of such claims.
(Ad) institute against, join If any other Person in instituting against or take any action, direct or indirect, in furtherance indirect payment or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and distribution (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, a payment or distribution by or from NEG on account of the NEG Equity Guaranty or otherwise), whether consisting of money, property or securities, shall be collected or received by any Receivables Tranche B Lender in respect of the Tranche B Obligations, such Tranche B Lender forthwith shall deliver the same to the Administrative Agent for the account of the Tranche A Lenders, in the form received, duly indorsed to the Administrative Agent, if required, to be applied to the payment or Related Securityprepayment of the Tranche A Obligations until the Tranche A Obligations are paid in full. The provisions set forth Until so delivered, such payment or distribution shall be held in trust by such Tranche B Lender as the property of the Tranche A Lenders, segregated from other funds and property held by such Tranche B Lender.
(e) Notwithstanding anything to the contrary contained in this Agreement or any other Credit Document and irrespective of (i) anything contained in any filing or agreement to which the Administrative Agent, any Tranche A Lender or any Tranche B Lender now or hereafter may be a party and (ii) the rules for determining priority under the Uniform Commercial Code or any other law governing the relative priorities of secured creditors, the subordination provisions under this Section 3 11.20 apply notwithstanding the fact that the security interests and Liens in the Collateral in favor of the Administrative Agent run to each of the GenHoldings Lenders.
(f) Subject to the payment in full of the Tranche A Obligations, the Tranche B Lenders shall be subrogated to the extent of the payments made to the Tranche A Lenders pursuant to the provisions of this Section 11.20 to the rights of the Tranche A Lenders to receive payments or distributions of assets of the Borrower or NEG in respect of the Tranche A Obligations until the Tranche B Obligations shall be paid in full. For the purposes of such subrogation, payments or distributions to the Administrative Agent, for the account of the Tranche A Lenders, of any money, property or securities to which any Tranche B Lender would be entitled with respect to Tranche B Obligations except for the provisions of this Section 11.20 shall be deemed, as among the Borrower, NEG and their respective creditors other than the Tranche A Lenders and such Tranche B Lenders, to be a payment by the Borrower or NEG to or on account of Tranche B Obligations, it being understood that the provisions of this Section 11.20 are, and are intended solely solely, for the purpose of defining the relative rights of the LenderTranche B Lenders, on the one hand, and the Senior Interest Holders Tranche A Lenders, on the other hand. .
(g) Notwithstanding anything to the contrary in this Section 11.20, the subordination provisions contained in this Section 11.20 are not applicable to any extensions of credit other than (x) the extensions of credit scheduled on Annex I and II to the Third Waiver and Amendment dated as of November 14, 2002 and (y) other extensions of credit, consented to by each of the Tranche B Lenders.
(h) This Section 11.20 shall not be amended, supplemented, waived or otherwise modified without the consent of each of the GenHoldings Lenders.
(i) Nothing contained in this Note Section 11.20 or elsewhere in this Agreement is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) Borrower and the LenderTranche B Lenders, the obligation of the Borrower’s obligation, which is unconditional absolute and absoluteunconditional, to pay to the Lender Tranche B Lenders the principal of and any interest on this Note the Tranche B Obligations as and when the same shall become due and payable in accordance with its terms, or is intended to or shall affect the terms hereof or to affect then relative rights of the Lender Tranche B Lenders and creditors of the Borrower (other than the Senior Interest Holders)Tranche A Lenders, nor shall anything herein or therein prevent the Tranche B Lenders from exercising all remedies otherwise permitted by applicable law upon the occurrence of a Borrower Inchoate Default or Borrower Event of Default, subject to the rights, if any, under this Section 11.20 of the Tranche A Lenders in respect of cash, property or securities of the Borrower received upon the exercise of any such remedy."
Appears in 2 contracts
Sources: Third Waiver and Amendment (Pacific Gas & Electric Co), Third Waiver and Amendment (Pg&e Corp)
Subordination. Borrower and, by its acceptance of this Note, Lender PSLT-BLC Holdings and BLC Holdings hereby acknowledge and agree that any the Brookdale Lessees' interests under the Property Leases and the Brookdale Lessees' leasehold interests in and to the Facilities are junior, inferior, subordinate and subject in right, title, interest, lien, encumbrance, priority and all payments made other respects to the lien of any one or more Facility Mortgages now or hereafter in respect of this Note are force and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined effect upon or encumbering the Provident Lessors' interests in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditorsFacilities, or any other marshaling portion thereof, and to all collateral assignments by the Provident Lessors to any third party or parties of any of the assets Provident Lessors' rights under the Property Leases or the rents, issues and liabilities of Borrower profits thereof or therefrom as security for any sale of all liability or substantially all indebtedness, direct, indirect or contingent, of the assets of Borrower (Provident Lessors to such proceedings being herein collectively called “Bankruptcy Proceedings”)third party or parties, the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoingall future modifications, in accepting this Noteextensions, the Lender hereby irrevocably agrees that the Administrative Agentrenewals, in the name of the Lender or otherwiseconsolidations and replacements of, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributionsamendments and supplements to, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Notemortgage, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment mortgages or other distribution of any kind or character from Borrower or from other source whatsoeverassignments, in respect of this Noteprovided that, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors Facility Mortgage (other than the Senior Interest HoldersExisting Facility Mortgages) (regardless of whether such Facility Mortgage is a Brookdale Requested Refinancing) placed upon the Facilities after the date hereof, PSLT-BLC Holdings shall (or shall cause the applicable Provident Lessor(s) to) cause the applicable Facility Mortgagee to enter into, execute and deliver a subordination, non-disturbance and attornment agreement substantially similar to the form attached to the Property Leases as Exhibit C or such other form as shall be reasonably acceptable to BLC Holdings, PSLT-BLC Holdings and the applicable Facility Mortgagee (the "SNDA"), which SNDA shall acknowledge the subordination of the Property Leases described in this Paragraph 12(e) and shall provide, among other things, that if the LenderFacility Mortgagee or any other person acquires title to the applicable Facility, Borrower’s obligationso long as the applicable Brookdale Lessee is not in default (beyond the expiration of any applicable notice and/or grace period) under the applicable Property Lease, which is unconditional the applicable Brookdale Lessee's leasehold estate possession and absoluteoccupancy of the applicable Facility shall not be disturbed, provided further that BLC Holdings shall cause the Brookdale Lessees to pay enter into, execute and delivery promptly to the Lender requesting party the principal of and interest on this Note as and when the same shall become due and payable SNDA in accordance with the terms hereof or to affect then relative rights of this Paragraph 12(e) and the Lender and creditors of Borrower (other than the Senior Interest Holders)Property Leases.
Appears in 2 contracts
Sources: Agreement Regarding Leases (Brookdale Senior Living Inc.), Lease Agreement (Provident Senior Living Trust)
Subordination. Any indebtedness of Borrower andor any Subsidiary Guarantor now or hereafter held by Holdings is hereby subordinated to the prior payment in full in immediately available funds of all the Guaranteed Obligations, by its acceptance and such indebtedness of this Noteany Loan Party to Holdings, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and if the Administrative Agent, BorgWarner Inc. after an Event of Default has occurred and is continuing, so requests, shall be collected, enforced and received by Holdings as collection agent (as amendedtrustee for the Guaranteed Parties, restated shall be segregated from all other property or otherwise modified from time funds of Holdings and shall be paid over to time, the “Receivables Purchase Agreement”). Borrower shall, subject Administrative Agent for the benefit of the Guaranteed Parties for application to the Guaranteed Obligations in accordance with the terms of this Section 3Agreement, have or if this Agreement does not provide for the right application of such amount, to pay all be held by the Administrative Agent as collateral security for any Guaranteed Obligations thereafter existing, but without affecting or impairing in any part manner the liability of Holdings under the unpaid principal amount other provisions of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cashGuaranty. In the event that the Lender Holdings receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, indebtedness described in respect the first sentence of this Note, other than as expressly permitted by Section 11.07 prior to the terms Facility Termination Date and during the existence of this Notean Event of Default, such payment or other distribution of such indebtedness which has been received by Holdings, if requested by the Administrative Agent, shall be received by Holdings as trustee for the sole benefit Guaranteed Parties, shall be segregated from all other property or funds of the Senior Interest Holders Holdings and shall be turned paid over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received Guaranteed Parties for application to the Guaranteed Obligations in accordance with the terms of this Agreement or, if this Agreement does not provide for the application of such amount, to be held by the Senior Interest Holders in respect Administrative Agent as collateral security for any Guaranteed Obligations thereafter existing. Prior to the transfer by Holdings of any note or negotiable instrument evidencing any indebtedness of any Loan Party to Holdings, Holdings shall ▇▇▇▇ such note or negotiable instrument with a legend that the same is subject to this subordination. Without limiting the generality of the foregoing, Holdings hereby agrees with the Guaranteed Parties that it will not exercise any right of subrogation which it may at any time otherwise have as a result of this NoteGuaranty (whether contractual, while under Section 509 of the Bankruptcy Code or otherwise) until after the Facility Termination Date has occurred; provided that if any Bankruptcy Proceedings are pending amount shall be paid to Holdings on account of such subrogation rights prior to such time, such amount shall be held in trust for the Lender benefit of the Guaranteed Parties and shall not forthwith be subrogated paid to the then existing rights Administrative Agent for the benefit of the Senior Interest Holders Guaranteed Parties to be credited and applied to the Guaranteed Obligations, whether matured or unmatured, in respect accordance with the terms of this Agreement or, if this Agreement does not provide for the application of such amount, to be held by the Administrative Agent as collateral security for any Guaranteed Obligations thereafter existing. Upon the occurrence of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Facility Termination Date”), the Lender Holdings shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, Guaranteed Parties to receive payments or distributions applicable to the Lender agrees that (i) the Lender shall not, Guaranteed Obligations until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent all Indebtedness of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned Loan Parties held by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or Holdings shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence paid in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)full.
Appears in 2 contracts
Sources: Credit Agreement (NorthStar Realty Europe Corp.), Credit Agreement (NorthStar Realty Europe Corp.)
Subordination. Borrower and(a) All claims of the Holder to principal, by its acceptance of interest, costs, expenses and any other amounts at any time owed under this Note, Lender hereby acknowledge and agree that Note or under any and all payments made in respect guaranty of this Note made by the Company or any of its subsidiaries or affiliates (collectively, “Junior Indebtedness”), are and shall remain subordinate and junior hereby expressly subordinated in right of payment and otherwise, as herein set forth, to the prior payment in full, in immediately available funds, of all Aggregate Unpaids Superior Indebtedness (as defined below) in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors manner described in such capacity, the “Administrative Agent”) for itself this Section 3 and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent Superior Equity (as amended, restated or otherwise modified from time to time, defined below) in the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of manner described in this Section 3. For the purpose hereof, have “Superior Indebtedness” shall mean (i) any and all amounts now or hereafter payable under the right Bridge Note or upon any future loans made to pay the Company by ▇▇▇▇▇ EDUCATION, LLC or its affiliates, (ii) any and all amounts now or hereafter payable to Westport National Bank under the Westport Credit Facility and (iii) all restructurings or refinancings in connection with any part amounts payable under the foregoing. For purposes of clarification, Superior Indebtedness shall include, without limitation, (x) the unpaid principal amount payment of this Note without premium all interest, costs, expenses and fees, whether accruing before or penalty at any time; provided, that interest shall be paid on after the amount repaid to and including the date of repayment. In the event commencement of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership case or proceeding, securing or otherwise relating to and at the rate or rates and amounts prescribed in the applicable documents, whether or not such interest, costs, expenses or fees are allowable or allowed in such case or proceeding and (y) all underlying indebtedness arising or accruing before or after the commencement of any bankruptcy, insolvency or receivership case or proceedings, or upon an assignment for . “Superior Equity” shall mean the benefit of creditors, or any other marshaling Series B Preferred Units of the assets Company now or hereafter issued with such rights and liabilities of Borrower or any sale of all or substantially all privileges as set forth in Section 4.3(c) of the assets Operating Agreement. For purposes hereof, “Senior Lenders” shall mean (x) any holder of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed Superior Indebtedness described in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that clauses (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) of this paragraph and the Lender Superior Indebtedness shall notbe considered outstanding, without and shall include for all purposes hereunder, the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) amount of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder Commitment (whether as defined below) as in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as effect at the case may be, as though time of such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; determination and/or calculation and (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Superior Equity.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Trudy Corp), Asset Purchase Agreement (Trudy Corp)
Subordination. Borrower andThe Issuer agrees, for itself and its respective successors and assigns, and the Purchaser agrees, and each transferee of any Note, by its acquisition and acceptance of any Note shall be deemed to have agreed, that the payment of the Obligations (including any fees payable in connection with this Note, Lender Purchase Agreement or the Purchase Documents or the Notes) is hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior subordinated in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject provided herein to the terms of this Section 3, have the right to pay all or any part prior Discharge of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or completeSenior Debt Obligations, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment that the subordination effected by this §20 is for the benefit of creditorsand enforceable by the holders of Senior Debt Obligations. Notwithstanding any other provision of this Purchase Agreement to the contrary (including §3), prior to the Discharge of the Senior Debt Obligations, Issuer will not, and will not permit Emmis OpCo or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower its Subsidiaries (such proceedings being herein collectively called “Bankruptcy Proceedings”)together, the Senior Interest shall first be paid “Purchase Obligors” and performed in full and in cash before together with the Lender shall be entitled OpCo Obligors, the “Obligors”) to receive and to retain (1) make any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower on, or from other source whatsoever, in respect of any Obligations (including in respect of any fees payable in connection with this NotePurchase Agreement or the Purchase Documents or the Notes), other than as expressly permitted by (2) acquire any Obligations or interest or rights in any Obligations (or any of the fees payable in connection with this Purchase Agreement or the Purchase Documents or the Notes) for cash or assets or otherwise, (3) cancel or discharge any Obligations (or any fees payable in connection with this Purchase Agreement or the Purchase Documents or the Notes) that result in any cash payments of any type to holders of indebtedness incurred under this Purchase Agreement, (4) permit the terms of any of its Obligations (or any of the fees payable in connection with this Note, such payment Purchase Agreement or other distribution shall the Purchase Documents or the Notes) to be received for modified in any way that could have an adverse effect on the sole benefit rights or interests of any holders of the Senior Interest Holders and shall be turned over by Debt Obligations or make this Purchase Agreement more restrictive in any respect than the Lender to the Administrative Agent OpCo Credit Agreement (for the benefit as in effect as of the Senior Interest Holdersdate hereof), (5) forthwith. Notwithstanding permit or require any payments voluntary or distributions received by optional repayment, prepayment, redemption or repurchase of the Senior Interest Holders Obligations (including of any fees payable in respect of connection with this NotePurchase Agreement or the Purchase Documents or the Notes), while any Bankruptcy Proceedings are pending and in each case the Lender Purchaser shall not be subrogated to the then existing rights receive or accept any of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement foregoing (the “Final Payout Date”by set off or otherwise), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance prior written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the OpCo Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each the OpCo Lenders. Each holder of Senior Debt Obligations, whether such Persons; (vi) Senior Debt Obligations are now outstanding or hereafter created, incurred, assumed or guaranteed, shall be deemed to hold and have acquired Senior Debt Obligations and permitted the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any incurrence of the assets of Borrower, including, without limitation, any Receivables or Related SecurityObligations hereunder in reliance upon this §20 and the provisions contained in this Purchase Agreement. The provisions In consideration for the subordination provision set forth in this Section 3 are intended solely for § 20, the purpose of defining Consenting OpCo Lenders have provided to the relative rights Purchaser the purchase option set forth in §1 of the Lender, on Fourth Amendment to the one hand, OpCo Credit Agreement and §21 hereof (the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders“Purchase Option”) and the LenderPurchaser has agreed to the provisions of this §20 in reliance upon the Purchase Option. Notwithstanding anything to the contrary herein, Borrower’s obligation(i) out-of-pocket costs and expenses (including fees and expenses of counsel) in an aggregate amount of up to $250,000 incurred by the Purchaser in connection with this Purchase Agreement may be paid in cash by the Issuer to the Purchaser and (ii) except during the Standstill Period in addition to the out-of-pocket expenses in clause (i), which is unconditional the Issuer may reimburse the Purchaser in cash for its out of pocket costs and absoluteexpenses (including fees and expenses of counsel) in an aggregate amount of up to $75,000 incurred in connection with this Purchase Agreement, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof including any amendment, modification or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)waiver hereof.
Appears in 2 contracts
Sources: Revolving Credit and Term Loan Agreement (Emmis Communications Corp), Note Purchase Agreement (Emmis Communications Corp)
Subordination. Borrower andThe indebtedness evidenced by this CFC Subordinated Note is subordinated to the prior payment in full of all of the Buyer’s recourse obligations under the Receivables Purchase Agreement. The subordination provisions contained herein are for the direct benefit of, by its acceptance and may be enforced by, the Buyer’s successors and assigns and/or any of this Notetheir respective assignees (collectively, Lender hereby acknowledge and agree that any and the “Senior Claimants”) under the Receivables Purchase Agreement. Until the date after the Final Payout Date on which all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in advances outstanding under the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bankhave been repaid in full and all other obligations of the Buyer thereunder (all such obligations, National Association, as Administrative Agent (together with its successors in such capacitycollectively, the “Administrative AgentSenior Claims”) for itself have been indefeasibly paid and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrowersatisfied in full, the Purchasers and the Administrative AgentOriginator shall not demand, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demandaccelerate, ▇▇▇ for, collecttake, receive and receipt for any and all such payments or distributionsaccept from the Buyer, and file, prove and vote directly or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Noteindirectly, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives cash or other property or by set-off or any other manner (including without limitation from or by way of collateral) any payment or other distribution security of all or any kind of the indebtedness under this CFC Subordinated Note or character exercise any remedies or take any action or proceeding to enforce the same; provided, however, that (i) the Originator hereby agrees that it will not institute against the Buyer any Insolvency Proceeding unless and until a period of one year and one day has elapsed after the Final Payout Date and (ii) nothing in this paragraph shall restrict the Buyer from Borrower paying, or the Originator from other source whatsoeverrequesting, in respect of any payments under this Note, other than CFC Subordinated Note so long as expressly permitted by the terms of this Note, Buyer is not required under the Receivables Purchase Agreement to set aside the funds used for such payment or other distribution shall be received payments for the sole benefit of, or otherwise pay over to, any of the Senior Interest Holders Claimants; and provided, further, that the making of such payment would not otherwise violate the terms and provisions of the Receivables Purchase Agreement. Should any payment, distribution or security or proceeds thereof be received by the Originator in violation of the immediately preceding sentence, the Originator agrees that such payment shall be segregated, received and held in trust for the benefit of, and deemed to be the property of, and shall be turned immediately paid over by the Lender and delivered to the Administrative Agent (Indenture Trustee for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Claimants.
Appears in 2 contracts
Sources: Omnibus Amendment (Domus Holdings Corp), Omnibus Amendment (Realogy Corp)
Subordination. Except as otherwise provided in this Section 13.7, any indebtedness of any Borrower now or hereafter owing to any other Borrowers is hereby subordinated to the Obligations, whether heretofore, now or hereafter created, and whether before or after notice of termination hereof, and, by its acceptance following the occurrence and during the continuation of this Notean Event of Default, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). no Borrower shall, subject without the prior consent of Lender, pay in whole or in part any of such indebtedness nor will any such Borrower accept any payment of or on account of any such indebtedness at any time while such Borrower remains liable hereunder. At the request of Lender, after the occurrence and during the continuance of an Event of Default, each Borrower shall pay to the terms of this Section 3, have the right to pay Lender all or any part of such subordinated indebtedness and any amount so paid to Lender at its request shall be applied to payment of the unpaid principal amount Obligations. Each payment on the indebtedness of this Note without premium or penalty at any time; provided, that interest Borrower to the other Borrowers received in violation of any of the provisions hereof shall be deemed to have been received by any other Borrowers as trustee for Lender and shall be paid over to Lender immediately on account of the amount repaid Obligations, but without otherwise affecting in any manner any such Borrower's liability under any of the provisions of this Agreement. Each Borrower agrees to and including file all claims against the date other Borrowers in any bankruptcy or other proceeding in which the filing of repayment. In the event claims is required by law in respect of any dissolution, winding up, liquidation, readjustment, reorganization or indebtedness of the other similar event relating Borrowers to such Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and all of any such Borrower's rights thereunder. If for any reason any such Borrower fails to retain any payment or distribution file such claim at least thirty (30) days prior to the last date on which such claim should be filed, Lender, as such Borrower's attorney-in-fact, is hereby authorized to do so in respect to this Note. In order to implement the foregoingBorrowers' name or, in accepting this NoteLender's discretion, the Lender hereby irrevocably agrees that the Administrative Agentto assign such claim to, and cause a proof of claim to be filed in the name of the Lender of, Lender's nominee. In all such cases, whether in administration, bankruptcy or otherwise, may demandthe person or persons authorized to pay such claim shall pay to Lender the full amount payable on the claim in the proceeding, ▇▇▇ for, collect, receive and receipt to the full extent necessary for that purpose any and such Borrower hereby assigns to Lender all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect Borrower's rights to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by to which such Borrower otherwise would be entitled. If the Senior Interest Holders in respect of this Noteamount so paid is greater than any such Borrower's liability hereunder, while any Bankruptcy Proceedings are pending Lender will pay the Lender shall not be subrogated excess amount to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)party entitled thereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (Guess Inc Et Al/Ca/), Loan and Security Agreement (Guess Inc Et Al/Ca/)
Subordination. Borrower and, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made Anything in respect of this Note are and shall remain to the contrary notwithstanding, the Indebtedness evidenced by this Note will be subordinate and junior in right of payment to all Aggregate Unpaids (as defined the Senior Obligations, whether outstanding on the date of this Note or incurred after the date of this Note, to the extent and in the Receivables Purchase Agreement manner hereinafter describedset forth:
(a) owed Notwithstanding anything to Wachovia Bankthe contrary contained herein, National Association, as Administrative Agent (together with its successors this Note is in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, all respects subject to the terms and provisions of the Subordination Agreement.
(b) In the event of any sale under or in accordance with any judgment or decree rendered with respect to this Section 3Note in any proceeding by or on behalf of the holder hereof or in the event of any distribution, have the right to pay division or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the unpaid principal amount assets of this Note without premium the Company, or penalty at the proceeds thereof, to creditors of the Company occurring by reason of any time; providedliquidation, that interest shall be paid on dissolution or winding up of the amount repaid to and including the date of repayment. In Company or in the event of any dissolutionexecution sale, winding upreceivership, insolvency, bankruptcy, liquidation, readjustment, reorganization or other similar proceeding relative to the Company or its debts or properties, then in any such event relating to Borrower, whether voluntary or involuntary, partial or completethe Winona Lease Obligations will be preferred in payment, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall Winona Lease Obligations will be first be paid and performed satisfied in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution of any kind or character, whether in cash, property or securities (other than securities which are subordinate and junior in right of payment to the payment of the Winona Lease which may at the time be outstanding), will be made upon this Note; and in any such event any distribution of any kind or character, whether in cash, property or securities (other than in securities which are subordinate and junior in right of payment to the payment of the Winona Lease which may at the time be outstanding), which is made upon or in respect of the Indebtedness will be paid over to the lessor under the Winona Lease for application to the Winona Lease Obligations unless and until the Winona Lease Obligations is paid and satisfied in full, and such amounts so paid over will be deemed not to be made upon or in respect of the Indebtedness, or the holder of this Note will be subrogated to the rights of the lessor under the Winona Lease to the extent thereof, as elected by the holder of this Note. ;
(c) In order the event that pursuant to implement the foregoing, in accepting provisions hereof this Note, Note is declared or becomes due and payable before its expressed maturity because of an occurrence of a Default (under circumstances when the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender foregoing clause (b) is not applicable) or otherwise, may demandno amount will be paid by the Company in respect of Indebtedness in excess of current interest payments as provided herein, ▇▇▇ forexcept at the stated maturity thereof (all subject to the foregoing clause (b) above), collectunless and until the Winona Lease Obligations has been paid in full or payment thereof has been provided for in a manner satisfactory to the lessor under the Winona Lease;
(d) Without limiting the effect of any of the other provisions hereof, receive and receipt for during the continuance of any and all such payments default in the payment of rent or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings other amount with respect to any the Winona Lease, no payment will be made on or with respect to the Indebtedness, if either (i) notice of such default in writing has been given to the Company by the lessor under the Winona Lease, provided that judicial proceedings are commenced with respect to such default within one hundred eighty (180) days thereafter, or (ii) judicial proceedings are pending in respect of such default.
(e) The holder hereof irrevocably authorizes and all claims empowers the holder of the Lender relating to this NoteWinona Lease, in each case until any proceeding under Title 11 of the Senior Interests shall have been paid United States Code in which the Company is subject, to file a proof of claim in behalf of the holder hereof with respect to the obligations hereunder if the holder hereof fails to file a proof of its claims prior to 30 days before the expiration of the time period during which such claims must be submitted, to accept and performed receive any payment or distribution which may be payable or deliverable at any time upon or in full respect of the obligations hereunder in an amount not in excess of that portion of the Winona Lease Obligation then outstanding (unless CIT is entitled to such payment under the terms of the Subordination Agreement) and to take such other action as may be reasonably necessary to effectuate the foregoing. Unless CIT has filed a proof of claim or has otherwise sought the same information or documents, the holder hereof will provide to the lessor of the Winona Lease all information and documents necessary to present claims or seek enforcement as aforesaid.
(f) To the extent that the lessor under the Winona Lease receives any amounts from the holder hereof in cashaccordance with the provisions of the Note which, when added to the total amount received directly by the lessor under the Winona Lease from any other source, exceeds the total Winona Lease Obligation, the lessor under the Winona Lease will be obligated to pay the excess to the holder hereof. In the event that as a result of an avoidance action under Title 11 of the Lender receives United States Code (including, but not necessarily limited to, any action under 11 U.S.C. ▇▇.▇▇. 544, 545, 547, 548, 549 and/or 550), the holder hereof is required to return to the Company or its bankruptcy estate any payment received by the holder hereof and paid over to the lessor under the Winona Lease pursuant to this Section 5, thereupon the lessor of the Winona Lease will pay back to the holder hereof such amount paid over to the lessor of the Winona Lease.
(g) The provisions of this Section 5 will be subject and subordinate to the rights of CIT under the Subordination Agreement. The holder hereof will not be required to take any action, perform any obligation or other distribution make any payment hereunder which it reasonably believes would: (i) be in conflict with or contrary to the terms of the Subordination Agreement; and/or (ii) prevent it from performing any of its obligations under the Subordination Agreement; and/or (iii) prevent or frustrate CIT from exercising any of its rights under the Subordination Agreement. The lessor under the Winona Lease will not exercise any rights hereunder to the extent doing so would: (x) be in conflict with or contrary to the terms of the Subordination Agreement; and/or (y) prevent the holder hereof from performing any of its obligations under the Subordination Agreement; and/or (z) prevent or frustrate CIT from exercising any of its rights under the Subordination Agreement.
(h) No right of any kind present or character from Borrower future holder of the Senior Obligations to enforce subordination as herein provided will at any time or from other source whatsoeverin any way be prejudiced or impaired by any failure to act on the part of Buyer or the Company, in respect or by any noncompliance by Buyer or the Company with the terms, provisions and covenants of this Note, other than as expressly permitted by the terms regardless of this Note, any knowledge thereof that any such payment or other distribution shall be received for the sole benefit holders of the Senior Interest Holders and shall Obligations may have or with which they may be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Securityotherwise charged. The provisions set forth in of this Section 3 5 are intended solely for the purpose of defining the relative rights of the Lender, holders of the Senior Obligations on the one hand, and the Senior Interest Holders holder hereof on the other hand. Nothing contained , and nothing in this Note is intended to or shall Section 5 will impair, as between Borrower, its creditors (other than Buyer or the Senior Interest Holders) Company and the Lenderholder hereof as applicable, Borrower’s obligation, which is unconditional the obligations of Buyer and absolute, the Company to pay to the Lender the principal of and interest on this Note as and when the same shall become due and payable holder hereof Indebtedness in accordance with the remaining terms of this Note, nor will anything herein prevent the holder hereof from exercising all remedies otherwise permitted by applicable law or hereunder upon any Default, subject to affect then relative rights the rights, if any, of the Lender and creditors holders of Borrower (other than the Senior Interest Holders)Obligations as herein provided. Without limiting the foregoing, no suspension of any payment of Indebtedness pursuant to the provisions of this Section 5 will suspend or defer the due date of such payment as determined by the remaining provisions of this Note.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Discus Acquisition Corp), Redemption Note (Discus Acquisition Corp)
Subordination. Borrower andDuring the continuance of a Cash Control Event, by its acceptance if there are any Obligations outstanding, no Credit Party shall make any payments or advances of this Noteany kind, Lender hereby acknowledge directly or indirectly, on any debts and agree liabilities to any other Credit Party, any Investor or the Management Company or the Administrator whether now existing or hereafter arising and whether direct, indirect, several, joint and several, or otherwise, and howsoever evidenced or created (collectively, the “Other Claims”), except to the extent that such payments or advances are being provided for the sole purpose to directly or indirectly pay the Obligations then outstanding. All Other Claims, together with all Liens on assets securing the payment of all or any and portion of the Other Claims shall at all payments made in respect times during the continuance of this Note a Cash Control Event, if there are and shall remain subordinate any obligations outstanding under the Credit Facility, be subordinated to and junior in right of and in payment to the Obligations and all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay Liens on assets securing all or any part portion of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or completeObligations, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment each Credit Party agrees to take such actions reasonably requested by the Administrative Agent as are reasonably necessary to provide for the benefit of creditors, or such subordination between it and any other marshaling Credit Party or the Management Company or the Administrator, inter se, including, but not limited to, provisions for such subordination in the documents evidencing the Other Claims. Notwithstanding the foregoing, (i) so long as no Event of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”Default under Section 10.1(a), Section 10.1(h), Section 10.1(i) or Section 10.1(q) has occurred and is continuing, the Senior Interest shall first be paid and performed in full and in cash before the Lender Initial Borrower shall be entitled to receive pay Permitted RIC Distributions and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender Credit Parties, the Administrator and the Management Company shall not, without be entitled to pay and/or receive (as applicable) a one-time Management Fee and Administration Fee for one calendar quarter after the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) occurrence of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder Cash Control Event (whether in connection with Bankruptcy Proceedings or otherwisethe “Exempt Fees”), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization uponprovided that, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, Management Company and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of Administrator each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes acknowledges and agrees that at any time a Cash Control Event has occurred and is continuing and if there are any Obligations outstanding under the obligations represented by this Note are not secured Credit Facility, the payment of any and all Management Fees, Administration Fees or other fees due and owing to it by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors Fund (other than Exempt Fees) shall be subordinated to and inferior in right and payment to the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable Obligations in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)all respects.
Appears in 2 contracts
Sources: Revolving Credit Agreement (AGL Private Credit Income Fund), Revolving Credit Agreement (AGL Private Credit Income Fund)
Subordination. Borrower andThis Note, and the indebtedness evidenced hereby (the “Subordinated Debt”), including principal and interest, is expressly subordinate and junior to all of the obligations and indebtedness of Maker (the “Senior Debt”) under the Loan Documents (as defined in that certain Second Amended and Restated Credit Agreement dated as of June 26, 2009, by its acceptance and among Resaca Exploitation, Inc, the Lenders party thereto and CIT Capital USA Inc., as Administrative Agent for such Lenders (in such capacity, “Agent”), together with all amendments, supplements, modifications and/or restatements thereto (the “Credit Agreement”)) to the extent set forth in subparagraphs (a) through (f), inclusive, below (the “Subordination Subparagraphs”).
(a) If a Default or an Event of Default (as such terms are defined in the Credit Agreement) shall occur, then, unless and until such Default or Event of Default shall have been remedied by indefeasible payment in full of all Senior Debt in cash or otherwise cured, or expressly waived in writing by all affected holders of Senior Debt, the Maker shall not make and the holder of this NoteNote shall not accept or receive, Lender hereby acknowledge any direct or indirect payment of or on account of any Subordinated Debt.
(b) In the event of any insolvency, bankruptcy, liquidation, reorganization or other similar proceedings, or any receivership proceedings in connection therewith, relative to the Maker, and agree that in the event of any proceedings for voluntary liquidation, dissolution or other winding up of the Maker, whether or not involving insolvency or bankruptcy proceedings, then all Senior Debt shall first be indefeasibly paid in full and all payments in cash before any payment is made of or on account of any Subordinated Debt.
(c) In any of the proceedings referred to in subparagraph (b) above, any payment or distribution of any kind or character whether in cash, property, stock or obligations, which may be payable or deliverable by the Maker in respect of this Note are shall be paid or delivered directly to the holders of Senior Debt for the payment thereof in accordance with the priorities then existing among such holders, unless and until all Senior Debt shall remain subordinate have been indefeasibly paid in full and junior in right cash.
(d) If any payment or distribution of payment to all Aggregate Unpaids any character, whether in cash, securities or other property, shall be received by the Payee in contravention of any of the terms of this Note or any other Loan Document (as defined in the Receivables Purchase Agreement hereinafter describedCredit Agreement) owed to Wachovia Bankand before all the Senior Debt shall have been indefeasibly paid in full and in cash, National Association, as Administrative Agent (together with its successors such payment or distribution shall be received in such capacity, trust for the “Administrative Agent”) for itself benefit of the holders of the Senior Debt at the time outstanding and various other purchasers from time to time party thereto (the “Purchasers” shall forthwith be paid over or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by delivered and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject transferred to the terms holders of this Section 3the Senior Debt for the ratable application in payment thereof in accordance with the priorities then existing among such holders.
(e) The Payee will not commence any action or proceeding, have including, without limitation, an action to recover on a right of set-off or similar right or remedy, against the right Maker to pay recover all or any part of the unpaid principal amount Subordinated Debt or join with any creditor, unless the holders of this Note without premium the Senior Debt shall also join, in bringing any proceedings against the Maker under any bankruptcy, reorganization, readjustment of debt, arrangement of debt, receivership, liquidation or penalty at insolvency law or statute of the Federal or any time; provided, that interest state government unless and until all Senior Debt shall be indefeasibly paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before cash.
(f) The maximum principal amount, the Lender shall be entitled to receive and to retain any payment rate of interest charged, or distribution in respect to this Note. In order to implement the foregoingtime, in accepting place, manner, terms or amount of principal or interest payments of this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender may not be modified or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Noteamended without, in each case until instance, the prior express written consent of the holder(s) of the Senior Interests shall have Debt unless all Senior Debt has been indefeasibly paid and performed in full and in cash. In The subordination provisions of this Note shall be deemed a continuing offer to all holders of Senior Debt to act in reliance on such provisions (but no such reliance shall be required to be proven to receive the event that the Lender receives any payment or other distribution benefits hereof) and may be enforced by such holders, and no right of any kind present or character from Borrower future holder of any Senior Debt to enforce subordination as provided in this Note shall at any time in any way be prejudiced or from other source whatsoeverimpaired by any act or failure to act on the part of the Maker or by any act or failure to act by any such holder, in respect or by any non-compliance by the Maker with the terms, provisions and covenants of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders).
Appears in 2 contracts
Sources: Waiver Letter (Resaca Exploitation, Inc.), Waiver Letter (Resaca Exploitation, Inc.)
Subordination. Borrower and(a) All claims of the Holder to principal, interest and any other amounts at any time owed under this Note (collectively, “Junior Indebtedness”) is hereby expressly subordinated in right of payment, as herein set forth, to the prior payment in full of all Senior Indebtedness (as defined below). No payment under Junior Indebtedness shall be made by its acceptance the Company, nor shall the Holder exercise any remedies under the Junior Indebtedness (including taking any legal action (whether judicial or otherwise) to collect the Junior Indebtedness), if, at the time of such payment, exercise or immediately after giving effect thereto, (i) there shall exist any material “Default” or “Event of Default” under any agreements governing any of the Senior Indebtedness or (ii) the maturity of any of the Senior Indebtedness has been accelerated and such acceleration has not been waived or such Senior Indebtedness has not been paid in full; provided, however, that (x) in the event that the holder of any Senior Indebtedness accelerates such Senior Indebtedness, then the Holder may accelerate the indebtedness evidenced by this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in y) if the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to Company is permitted under the terms of this Section 3, have the right Senior Indebtedness to pay all or any part an amount due and owing under this Note and fails to make such payment, then so long as the terms of the unpaid principal amount of this Note without premium or penalty at any time; providedSenior Indebtedness do not prohibit such action, that interest shall the Holder may exercise its rights to be paid on such amount, but only such amount (and Holder shall not be permitted to accelerate hereunder).
(b) Upon any payment or distribution of assets of the amount repaid to and including the date of repayment. In the event Company of any dissolutionkind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up, liquidation, readjustment, up or total or partial liquidation or reorganization or other similar event relating to Borrowerof the Company, whether voluntary or involuntary, partial involuntary or complete, and whether in bankruptcy, insolvency insolvency, receivership or receivership other proceedings, or upon an assignment for the benefit of creditors, or any other marshaling all Senior Indebtedness of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Company shall first be paid and performed in full and full, or payment thereof provided for in cash money, before the Lender shall be entitled to receive and to retain any payment is made under Junior Indebtedness; and upon any such dissolution or winding up or liquidation or reorganization, any distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of assets of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution Company of any kind or character from Borrower character, whether in cash, property or from other source whatsoeversecurities, in respect to which the Holder as holder of this Notethe Junior Indebtedness would be entitled except for the provisions hereof, other than as expressly permitted shall be paid by the terms of this NoteCompany or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or other distribution shall be distribution, or by the Holder if received for by Holder, directly to the sole benefit holder of the Senior Interest Holders and shall be turned over by the Lender Indebtedness, or its representatives, to the Administrative Agent (extent necessary to pay all such Senior Indebtedness in full, in money, after giving effect to any concurrent prepayment or distribution to or for the benefit of the holders of such Senior Interest HoldersIndebtedness, before any payment or distribution is made to the Holder with respect to the Junior Indebtedness.
(c) forthwith. Notwithstanding If the holders of the Senior Indebtedness in good faith believe Holder may fail to timely file a proof of claim in any payments such proceeding, the holder(s) of the Senior Indebtedness may do so for Holder.
(d) In the event that any payment or distributions distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing where the holder has actual knowledge of a Senior Indebtedness payment default shall be received by the Holder before all the Senior Interest Holders Indebtedness is paid in respect of this Notefull, while any Bankruptcy Proceedings are pending or provisions made for such payment, in accordance with its terms, such payment or distribution shall be held for the Lender benefit of, and shall not be subrogated to paid over or delivered to, the then existing rights holders of the Senior Interest Holders in respect Indebtedness or their representative or representatives, as their respective interests may appear, for application to the payment of all the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated Indebtedness remaining unpaid to the then existing rights of the extent necessary to pay all such Senior Interest HoldersIndebtedness in full, if any. In accepting this Notein money, the Lender agrees that (i) the Lender shall notin accordance with its terms, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings after giving effect to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-concurrent payment or non-performance of all distribution to or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become for the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; Senior Indebtedness.
(vie) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 hereof are intended solely for the purpose of defining the relative rights of the Lender, holders of the Senior Indebtedness on the one hand, hand and the Senior Interest Holders Holder as holder of the Junior Indebtedness on the other hand. Nothing contained in this Note is intended to or , and nothing herein shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) Company and the LenderHolder, Borrower’s obligationthe obligations of the Company under the Junior Indebtedness, which is are unconditional and absolute. With this in mind, notwithstanding the other provisions of this Section 6, if and so long as all documents governing the Senior Indebtedness permit one of the actions restricted by this Section 6, the restriction shall be waived and the restricted action permitted hereunder.
(f) No right of any present or future holder of any Senior Indebtedness to pay enforce the Lender subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the principal part of the Company or any act or failure to act, in good faith, by any such holder of the Senior Indebtedness, or any noncompliance by the Company with the terms, provisions and interest on covenants hereof, regardless of any knowledge thereof any holder of the Senior Indebtedness may have or be otherwise charged with. Without in any way limiting the generality of the foregoing, the holders of the Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Holder, without incurring responsibility to the Holder and without impairing or releasing the subordination provided in this Note as and when or the obligations hereunder of the Holder to the holders of the Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or create, renew or alter, the Senior Indebtedness, or otherwise amend or supplement in any manner the Senior Indebtedness or any instrument evidencing the same or any agreement under which the Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing the Senior Indebtedness; (iii) release any person liable or contingently liable in any manner for the payment or collection of the Senior Indebtedness; and/or (iv) exercise or refrain from exercising any rights against the Company or any other person.
(g) Each holder of any Senior Indebtedness, whether such Senior Indebtedness was created or acquired before or after the issuance of this Note, shall become due be entitled to rely on the subordination provisions set forth in this Note.
(h) Notwithstanding the provisions of this Section 6, the Holder shall not be charged with knowledge of the existence of facts which would prohibit the making of any payments on the Junior Indebtedness unless and payable until the holder(s) of the Senior Indebtedness or their representatives send written notice to Holder of same.
(i) Subject to the payment in accordance with full of all the terms hereof or Senior Indebtedness, Holder as holder of the Junior Indebtedness shall be subrogated to affect then relative the rights of the Lender and creditors holders of Borrower (other than the Senior Interest Holders)Indebtedness to receive payments or distributions of assets of the Company applicable to the Senior Indebtedness until the Senior Indebtedness shall be paid in full.
(j) The Holder shall confirm (in writing) the above subordination provisions if requested by any holder of the Senior Indebtedness, and shall execute and deliver such additional subordination agreements, consistent with the foregoing as any holder of Senior Indebtedness may require.
(k) For purposes hereof, “Senior Indebtedness” means, with respect to the Company, all indebtedness of the Company, whether outstanding on the date of the execution of this Note or thereafter created, to Burnley Capital and SBCC or one or more of their respective affiliates; provided, however, that any term loan included in the definition of Senior Indebtedness shall not exceed $1,500,000 and the $1,500,000 cap on any such term loan shall be decreased by any amounts repaid to the term loan lender under the Company’s term loan with such lender.
Appears in 2 contracts
Sources: Subordination Agreement (1847 Goedeker Inc.), Subordination Agreement (1847 Holdings LLC)
Subordination. Borrower and, by its acceptance of this Note, (a) The Subordinated Lender hereby acknowledge agrees that all its right, title and agree that any interest in and all payments made in respect of this Note are and to the Subordinated Obligations shall remain be subordinate and junior in right of payment to all Aggregate Unpaids the rights of the Senior Lenders in respect of the Senior Obligations, including the payment of principal, premium (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”if any), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, interest (including interest accruing during the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event pendency of any dissolutionbankruptcy, winding upinsolvency, liquidation, readjustment, reorganization receivership or other similar event relating proceeding, regardless of whether allowed or allowable in such proceeding), fees, expense and reimbursement obligations indemnification obligations and all other amounts payable under the Credit Agreement, any other Credit Document, or in respect thereof.
(b) The Borrower and the Subordinated Lender hereby agree that, notwithstanding any provision to Borrowerthe contrary in any agreement governing or evidencing Subordinated Obligations, no payment (whether directly, by purchase, redemption or exercise of any rights of setoff or otherwise and whether mandatory or voluntary) in respect of the Subordinated Obligations, whether voluntary of principal, interest or involuntary, partial or completeotherwise, and whether in bankruptcycash, insolvency securities or receivership proceedingsother property, shall be made by or upon an assignment for the benefit of creditors, or any other marshaling on behalf of the assets and liabilities of Borrower or received, accepted or demanded, directly or indirectly, by or on behalf of the Subordinated Lender at any sale time prior to the payment in full in cash of all the Senior Obligations.
(c) Upon any distribution of all or substantially all of the assets of the Borrower or upon any dissolution, winding up, liquidation or reorganization of the Borrower, whether in bankruptcy, insolvency, reorganization, arrangement or receivership proceedings or otherwise, or upon any assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Borrower, or otherwise:
(such proceedings being herein collectively called “Bankruptcy Proceedings”), i) the Senior Interest Lenders shall first be paid and performed entitled to receive indefeasible payment in full and in cash of the Senior Obligations (whenever arising) before the Subordinated Lender shall be entitled to receive and any payment on account of the Subordinated Obligations of the Borrower, whether of principal, interest or otherwise; and
(ii) any payment by, or on behalf of, or distribution of the assets of; the Borrower of any kind or character, whether in cash, securities or other property, to retain any which the Subordinated Lender would be entitled except for the provisions of this Section 1 shall be paid or delivered by the Person making such payment or distribution (whether a trustee in respect bankruptcy, a receiver, custodian or liquidating trustee or otherwise) directly to this Notethe Agent, for the benefit of the Senior Lenders, until the indefeasible payment in full in cash of all Senior Obligations. In order The Subordinated Lender agrees not to implement ask, demand, ▇▇▇ for or take or receive from the foregoingBorrower in cash, in accepting this Notesecurities or other property or by setoff, purchase or redemption (including, without limitation, from or by way of collateral), payment of all or any part of the Lender hereby irrevocably Subordinated Obligations to the extent prohibited by the preceding sentence, and agrees that in connection with any proceeding involving the Administrative AgentBorrower under any bankruptcy, insolvency reorganization, arrangement, receivership or similar law (i) the Agent is irrevocably authorized and empowered (in its own name or in the name of the Subordinated Lender or otherwise), may but shall have no obligation, to demand, ▇▇▇ for, collectcollect and receive every payment or distribution referred to in the preceding sentence and give acquittance therefor and to file claims and proofs of claim and take such other action (including, receive without limitation, voting the Subordinated Obligations and receipt enforcing any security interest or other lien securing payment of the Subordinated Obligation) as the Agent may deem necessary or advisable for the exercise or enforcement of any of the rights or interests of the Senior Lenders and all (ii) the Subordinated Lender shall duly and promptly take such payments action as the Agent, if any, may request to (A) collect amounts in respect of the Subordinated Obligations for the account of the Senior Lenders and to file appropriate claims or distributionsproofs of claim in respect of the Subordinated Obligations, (B) execute and filedeliver to such Agent such irrevocable powers of attorney, prove and vote assignments or consent other instruments as such Agent may request in any order to enable such Bankruptcy Proceedings with respect Agent to enforce any and all claims with respect to, and any security interests and other liens securing payment of, the Subordinated Obligations and (C) collect and receive any and all payments or distributions which may be payable or deliverable upon or with respect to the Subordinated Obligations. A copy of this Subordination Agreement may be filed with any court as evidence of the Lender relating to this NoteSenior Lenders’ right, in each case until the Senior Interests shall have been paid power and performed in full and in cash. authority thereunder.
(d) In the event that the Lender receives any payment by, or other on behalf of, or distribution of the assets of, the Borrower of any kind or character from Borrower character, whether in cash, securities or from other source whatsoeverproperty, in respect and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, shall be received by or on behalf of the Subordinated Lender or any Affiliate thereof at a time when such payment is prohibited by this Note, other than as expressly permitted by the terms of this NoteSubordination Agreement, such payment or other distribution shall be received held by the Subordinated Lender in trust (segregated from other property of the Subordinated Lender) for the sole benefit of the Senior Interest Holders of, and shall forthwith be turned paid over by to, the Lender to the Administrative Agent (Agent, for the benefit of the Senior Interest HoldersLenders, until the indefeasible payment in full in cash of all Senior Obligations.
(e) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated Subject to the then existing rights prior indefeasible payment in full in cash of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)Obligations, the Subordinated Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and Lenders to receive payments or distributions in cash, transfersecurities or other property of the Borrower to the Senior Obligations until all amounts owing on the Senior Obligations shall be indefeasibly paid in full in cash, pledge and, as between and among the Borrower, its creditors (other than the Senior Lenders) and the Subordinated Lender, no such payment or assign, or commence legal proceedings distribution made to enforce or collect the Senior Lenders by virtue of this Note or any rights in respect hereof; (ii) Subordination Agreement that otherwise would have been made to the Subordinated Lender shall not, without be deemed to be a payment by the advance written consent Borrower on account of the Administrative AgentSubordinated Obligations, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since it being understood that the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; paragraph (vie) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the LenderSubordinated Lender and the Senior Lenders.
(f) Without the prior written consent of the Agent, on the one handBorrower shall not give, or permit to be given, and the Senior Interest Holders Subordinated Lender shall not receive, accept or demand, (i) any security of any nature whatsoever for the Subordinated Obligations on any property or assets, whether now existing or hereafter acquired, of the other hand. Nothing contained in this Note is intended to Borrower or shall impairany Subsidiary of the Borrower or (ii) any guarantee, as between of any nature whatsoever, by the Borrower or any Subsidiary of the Borrower, its creditors (of the Subordinated Obligations other than any guarantee subordinated to the Senior Interest HoldersObligations on terms substantially identical to (and no less favorable in any significant respect to the Senior Lender than) those hereof. The Subordinated Lender agrees that all the proceeds of any such security or guarantee shall be subject to the provisions hereof with respect to payments and other distributions in respect of the LenderSubordinated Obligations.
(g) Any and all instruments or records now or hereafter creating or evidencing the Subordinated Obligations, Borrower’s obligationwhether upon refunding, which is unconditional and absoluteextension, renewal, refinancing, replacement or otherwise, shall contain the following legend: “Notwithstanding anything contained herein to pay the Lender contrary, neither the principal of and nor the interest on on, nor any other amounts payable in respect of, the indebtedness created or evidenced by this Note as and when the same instrument or record shall become due or be paid or payable, except to the extent permitted under the Subordination Agreement, dated [ ], [ ] 20[ ], among, inter alia, [ ] and [ ], which Subordination Agreement is incorporated herein with the same effect as if fully set forth herein.”
(h) The Subordinated Lender agrees that, except for claims submitted in any proceeding contemplated by Section 2(c) hereof, it will not take any action to cause the Subordinated Obligations to become payable prior to their scheduled maturity or exercise any remedies or take any action or proceeding to enforce the Subordinated Obligations if the payment of such Subordinated Obligation is then prohibited by this Subordination Agreement, and the Subordinated Lender further agrees not to file, or to join with any other creditors of the Borrower in filing, any petition commencing any bankruptcy, insolvency, reorganization, arrangement or receivership proceeding or any assignment for the benefit of creditors against or in respect of the Borrower or any other marshalling of the assets and liabilities of the Borrower (provided, that this prohibition shall in no event be construed so as to limit the Subordinated Lender’s right to cause the Subordinated Obligations to become payable prior to their scheduled maturity if all the outstanding Loans in respect of the Borrower under the Credit Agreement have been declared due and payable in accordance with the terms hereof or prior to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holderstheir scheduled maturity dates).
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Oncor Electric Delivery Co LLC), Term Loan Credit Agreement (Oncor Electric Delivery Co LLC)
Subordination. Borrower and, by its acceptance Notwithstanding any other provision of this NoteAgreement to the contrary, Lender hereby acknowledge and agree that any and all payments Tax Benefit Payment or Early Termination Payment required to be made in respect of by the Corporation to the Members under this Note are and Agreement shall remain rank subordinate and junior in right of payment to any principal, interest, or other amounts due and payable in respect of any obligations owed in respect of secured or unsecured indebtedness for borrowed money of the Corporation and its Subsidiaries, which shall include, for the avoidance of doubt, obligations in respect of any Credit Agreement (“Senior Obligations”) and shall rank pari passu in right of payment with all Aggregate Unpaids current or future unsecured obligations of the Corporation that are not Senior Obligations; provided, however, that to the extent the Corporation enters into or succeeds or takes subject to one or more other “tax receivable agreements” or similar agreement in which the Corporation is obligated to pay a third party for the use of tax benefits attributable to Basis Adjustments subsequent to this Agreement and the Covered Tax Benefit would be limited in a particular Taxable Year because the Corporation does not have sufficient actual taxable income after accounting for any Basis Adjustments (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors or corresponding term in such capacityother agreement) or interest deductions that are the subject matter of such other agreement, then the “Administrative Agent”) for itself and various other purchasers from time to time party thereto Tax Benefit Payment (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agentcomponents thereof, BorgWarner Inc. including the Hypothetical Tax Liability, Cumulative Net Realized Tax Benefit) shall be calculated without regard to such other agreement and without giving effect to any Basis Adjustments (or corresponding term in such other agreement) or interest deductions that are the subject matter of such other agreement. To the extent that any payment under this Agreement is not permitted to be made at the time payment is due as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to a result of this Section 5.1 and the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at agreement governing any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to BorrowerSenior Obligations (in each case, whether voluntary money is currently borrowed under such agreement or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (available to be borrowed under such proceedings being herein collectively called “Bankruptcy Proceedings”agreement), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution obligation nevertheless shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (accrue for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any Members and the Corporation shall make such payments or distributions received by at the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings first opportunity that such payments are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue permitted to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Obligations.
Appears in 2 contracts
Sources: Tax Receivable Agreement (Pluralsight, Inc.), Tax Receivable Agreement (Pluralsight, Inc.)
Subordination. Except as otherwise provided in this Section 11.08, any indebtedness of any Borrower and, by its acceptance of this Note, Lender now or hereafter owing to another Borrower is hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject subordinated to the terms of this Section 3, have the right to pay all or any part Obligations of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender Borrowers to the Administrative Agent (for and the benefit Lenders hereunder, whether heretofore, now or hereafter created, and whether before or after notice of termination hereof, and, following the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by occurrence and during the Senior Interest Holders in respect continuation of this Notean Event of Default, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall notno Borrower shall, without the advance written prior consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (pay in whole or in part) part any of such indebtedness nor will any Borrower accept any payment of or on account of any Senior Interest is rescinded such indebtedness at any time while such Borrower remains liable hereunder. At the request of the Administrative Agent, after the occurrence and during the continuance of an Event of Default, each Borrower shall pay to the Administrative Agent all or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue any part of such subordinated indebtedness and any amount so paid to be effective or the Administrative Agent at its request shall be reinstated, as applied to payment of the case may be, as though such Obligations hereunder. Each payment had not been made; (iv) on the Lender waives: (x) notice indebtedness of acceptance a Borrower to another Borrower received in violation of these provisions by any of the Senior Interest Holders; (y) notice provisions hereof shall be deemed to have been received by such Borrower as trustee for the Administrative Agent and shall be paid over to the Administrative Agent immediately on account of the existenceObligations hereunder, creation, non-payment or non-performance of all or but without otherwise affecting in any manner such Borrower’s liability under any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note Agreement. Each Borrower agrees to file all Persons who become claims against any other Borrower in any bankruptcy or other proceeding in which the holders of, or who continue filing of claims is required by law in respect of any indebtedness of any other Borrower to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holderssuch Borrower, and the Administrative Agent or shall be entitled to all of any such Borrower’s rights thereunder. If for any reason any Borrower fails to file such claim at least thirty (30) days prior to the Purchaser may proceed last date on which such claim should be filed, the Administrative Agent, as such Borrower’s attorney-in-fact, is hereby authorized to enforce do so in such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirectBorrower’s name or, in furtherance the Administrative Agent’s discretion, to assign such claim to, and cause a proof of claim to be filed in the name of, the Administrative Agent’s nominee. In all such cases, whether in administration, bankruptcy or contemplation of instituting againstotherwise, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship the person or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there persons authorized to pay such claim shall not have elapsed one year and one day since pay to the Final Payout Date has occurred; and (vii) Administrative Agent the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, full amount payable on the one handclaim in the proceeding, and to the Senior Interest Holders on full extent necessary for that purpose such Borrower hereby assigns to the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Administrative Agent all such Borrower’s obligationrights to any payments or distributions to which such Borrower otherwise would be entitled. If the amount so paid is greater than such Borrower’s liability hereunder, which is unconditional and absolute, to the Administrative Agent will pay the Lender excess amount to the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)party entitled thereto.
Appears in 2 contracts
Sources: Credit Agreement (Core-Mark Holding Company, Inc.), Credit Agreement (Core-Mark Holding Company, Inc.)
Subordination. Borrower and(a) All claims of the Holder to principal, interest and any other amounts at any time owed under this Note (collectively, “Junior Indebtedness”) is hereby expressly subordinated in right of payment, as herein set forth, to the prior payment in full of all Senior Indebtedness (as defined below). No payment under Junior Indebtedness shall be made by the Company, nor shall the Holder exercise any remedies under the Junior Indebtedness (including taking any legal action (whether judicial or otherwise) to collect the Junior Indebtedness), if, at the time of such payment, exercise or immediately after giving effect thereto, (i) there shall exist any material “Default” or “Event of Default” under any agreements governing any of the Senior Indebtedness, upon which the Company shall notify the Holder in writing of such Default within five (5) business days of its acceptance receipt of notice of the Default from the Senior Lender or (ii) the maturity of any of the Senior Indebtedness has been accelerated and (A) such acceleration has not been waived or (B) such Senior Indebtedness has not been paid in full; provided, however, that (x) in the event that the holder of any Senior Indebtedness accelerates such Senior Indebtedness, then the Holder may accelerate the indebtedness evidenced by this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in y) if the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to Company is permitted under the terms of this Section 3, have the right Senior Indebtedness to pay all or any part an amount due and owing under this Note and fails to make such payment, then so long as the terms of the unpaid principal amount of this Note without premium or penalty at any time; providedSenior Indebtedness do not prohibit such action, that interest shall the Holder may exercise its rights to be paid on such amount, but only such amount (and Holder shall not be permitted to accelerate hereunder).
(b) Upon any payment or distribution of assets of the amount repaid to and including the date of repayment. In the event Company of any dissolutionkind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up, liquidation, readjustment, up or total or partial liquidation or reorganization or other similar event relating to Borrowerof the Company, whether voluntary or involuntary, partial involuntary or complete, and whether in bankruptcy, insolvency insolvency, receivership or receivership other proceedings, or upon an assignment for the benefit of creditors, or any other marshaling all Senior Indebtedness of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Company shall first be paid and performed in full and full, or payment thereof provided for in cash money, before the Lender shall be entitled to receive and to retain any payment is made under Junior Indebtedness; and upon any such dissolution or winding up or liquidation or reorganization, any distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of assets of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution Company of any kind or character from Borrower character, whether in cash, property or from other source whatsoeversecurities, in respect to which the Holder as holder of this Notethe Junior Indebtedness would be entitled except for the provisions hereof, other than as expressly permitted shall be paid by the terms of this NoteCompany or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or other distribution shall be distribution, or by the Holder if received for by ▇▇▇▇▇▇, directly to the sole benefit holder of the Senior Interest Holders and shall be turned over by the Lender Indebtedness, or its representatives, to the Administrative Agent (extent necessary to pay all such Senior Indebtedness in full, in money, after giving effect to any concurrent prepayment or distribution to or for the benefit of the holders of such Senior Interest HoldersIndebtedness, before any payment or distribution is made to the Holder with respect to the Junior Indebtedness.
(c) forthwith. Notwithstanding If the holders of the Senior Indebtedness in good faith believe Holder may fail to timely file a proof of claim in any payments such proceeding, the holder(s) of the Senior Indebtedness may do so for Holder.
(d) In the event that any payment or distributions distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing where the holder has actual knowledge of a Senior Indebtedness payment default shall be received by the Holder before all the Senior Interest Holders Indebtedness is paid in respect of this Notefull, while any Bankruptcy Proceedings are pending or provisions made for such payment, in accordance with its terms, such payment or distribution shall be held for the Lender benefit of, and shall not be subrogated to paid over or delivered to, the then existing rights holders of the Senior Interest Holders in respect Indebtedness or their representative or representatives, as their respective interests may appear, for application to the payment of all the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated Indebtedness remaining unpaid to the then existing rights of the extent necessary to pay all such Senior Interest HoldersIndebtedness in full, if any. In accepting this Notein money, the Lender agrees that (i) the Lender shall notin accordance with its terms, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings after giving effect to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-concurrent payment or non-performance of all distribution to or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become for the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; Senior Indebtedness.
(vie) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 hereof are intended solely for the purpose of defining the relative rights of the Lender, holders of the Senior Indebtedness on the one hand, hand and the Senior Interest Holders Holder as holder of the Junior Indebtedness on the other hand. Nothing contained in this Note is intended to or , and nothing herein shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) Company and the LenderHolder, Borrower’s obligationthe obligations of the Company under the Junior Indebtedness, which is are unconditional and absolute. With this in mind, notwithstanding the other provisions of this Section 6, if and so long as all documents governing the Senior Indebtedness permit one of the actions restricted by this Section 6, the restriction shall be waived and the restricted action permitted hereunder.
(f) No right of any present or future holder of any Senior Indebtedness to pay enforce the Lender subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the principal part of the Company or any act or failure to act, in good faith, by any such holder of the Senior Indebtedness, or any noncompliance by the Company with the terms, provisions and interest on covenants hereof, regardless of any knowledge thereof any holder of the Senior Indebtedness may have or be otherwise charged with. Without in any way limiting the generality of the foregoing, the holders of the Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Holder, without incurring responsibility to the Holder and without impairing or releasing the subordination provided in this Note as and when or the obligations hereunder of the Holder to the holders of the Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or create, renew or alter, the Senior Indebtedness, or otherwise amend or supplement in any manner the Senior Indebtedness or any instrument evidencing the same or any agreement under which the Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing the Senior Indebtedness; (iii) release any person liable or contingently liable in any manner for the payment or collection of the Senior Indebtedness; and/or (iv) exercise or refrain from exercising any rights against the Company or any other person.
(g) Each holder of any Senior Indebtedness, whether such Senior Indebtedness was created or acquired before or after the issuance of this Note, shall become due be entitled to rely on the subordination provisions set forth in this Note.
(h) Notwithstanding the provisions of this Section 6, the Holder shall not be charged with knowledge of the existence of facts which would prohibit the making of any payments on the Junior Indebtedness unless and payable until the holder(s) of the Senior Indebtedness or their representatives send written notice to Holder of same.
(i) Subject to the payment in accordance with full of all the terms hereof or Senior Indebtedness, Holder as holder of the Junior Indebtedness shall be subrogated to affect then relative the rights of the Lender and creditors holders of Borrower (other than the Senior Interest Holders)Indebtedness to receive payments or distributions of assets of the Company applicable to the Senior Indebtedness until the Senior Indebtedness shall be paid in full.
(j) The Holder shall confirm (in writing) the above subordination provisions if requested by any holder of the Senior Indebtedness, and shall execute and deliver such additional subordination agreements, consistent with the foregoing as any holder of Senior Indebtedness may require.
(k) For purposes hereof, “Senior Indebtedness” means, with respect to the Company and the Companies, all senior secured indebtedness of the Company and the Companies, whether outstanding on the date of the execution of this Note or thereafter created, to banks, insurance companies, other financial institutions, private equity funds, hedge funds or other similar funds.
Appears in 2 contracts
Sources: Secured Subordinated Promissory Note (Smart for Life, Inc.), Secured Subordinated Promissory Note (Smart for Life, Inc.)
Subordination. Borrower and, by its acceptance (A) Junior Creditor hereby subordinates the payment of this Note, Lender hereby acknowledge and agree that any and all payments made the Junior Indebtedness to payment in respect full of this Note are and shall remain subordinate and junior the Senior Indebtedness in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together accordance with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3Subordination Agreement.
(B) Upon any distribution of the assets or readjustment of indebtedness of Debtor, have whether by reason of liquidation, dissolution, bankruptcy, reorganization, receivership or any other action or proceeding involving the right readjustment of all or any of the Junior Indebtedness, or the application of assets of Debtor to pay the payment or liquidation thereof, ACS shall be entitled to receive payment in full of the Senior Indebtedness prior to the payment of all or any part of the unpaid principal amount of this Note without premium Junior Indebtedness hereby subordinated.
(C) In order to enable ACS to enforce its rights hereunder in any action or penalty at any time; providedproceeding referred to in (B) above, that interest shall be paid on the amount repaid ACS is hereby irrevocably authorized and empowered in ACS’s discretion to make and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or completepresent for, and whether in bankruptcyon behalf of Junior Creditor, insolvency such proofs or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling claims against Debtor on account of the assets and liabilities of Borrower Junior Indebtedness as ACS may deem expedient or proper if the Junior Creditor has not filed such claims on or before the fifth (5th) day before the bar date for filing such claims (provided nothing herein shall entitle ACS to vote such proofs or claims in any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”proceedings), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for collect any and all such dividends or other payments or distributionsdisbursements made thereon in whatever form the same may be paid or issued, and fileto apply same on account of the Senior Indebtedness. Further, prove and vote or consent in order to enable ACS to enforce its rights hereunder in any such Bankruptcy Proceedings action or proceeding referred to in (B) above, Junior Creditor hereby appoints ACS, or its designee, attorney to take the above mentioned actions with respect full power of substitution in the premises Junior Creditor further agrees to execute and deliver any further documents or other instruments which may be necessary or expedient to enable ACS to collect any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment dividends or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not disbursements which may be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, made at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance time on account of all or any of the Senior Interests; Junior Indebtedness (except for the payments permitted by Section 4(A) below) or otherwise enforce its rights under this Subordination Agreement.
(D) Junior Creditor agrees that Junior Creditor will make proper notations on the Junior Note and (z) in Junior Creditor’s books and records indicating that the Junior Indebtedness is subject to this Subordination Agreement. The Junior Note and all diligence in enforcement, collection or protection of, or realization upon, other evidences of indebtedness accepted by the Senior Interests, or any thereof, or any security therefor; (v) these Junior Creditor from Debtor shall contain a specific statement that the indebtedness thereby evidenced is subject to the provisions constitute a continuing offer from the holder of this Note to all Persons who become Subordination Agreement.
(E) Junior Creditor acknowledges ACS’ lien on the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes Collateral and agrees that the obligations represented by this Note are Subordinated Security Interest shall be subject, subordinate and inferior to the liens in favor of ACS. ACS acknowledges Junior Creditor’s lien on the Collateral and agrees not secured by to contest or challenge the existence of any interest liens that Junior Creditors may have in any respect of the assets Junior Indebtedness, except with respect to the priority of Borrower, including, without limitation, any Receivables or Related Security. The provisions the liens as set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)herein.
Appears in 2 contracts
Sources: Intercreditor and Debt Subordination Agreement, Intercreditor and Debt Subordination Agreement (HG Holdings, Inc.)
Subordination. Borrower and(a) The Company covenants and agrees that, anything in this Section 206 or the Notes to the contrary notwithstanding, the indebtedness evidenced by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain the Notes is subordinate and junior in right of payment to all Aggregate Unpaids Senior Debt to the extent provided in this Section 206, and each holder of Notes, by such holder’s acceptance of such Notes, likewise covenants and agrees to the subordination provided in this Section 206 and the Base Indenture and shall be bound by the provisions of this Section 206. Senior Debt shall continue to be Senior Debt and entitled to the benefits of these subordination provisions irrespective of any amendment, modification, or waiver of any term of the Senior Debt or extension or renewal of the Senior Debt. In the event of
(as defined 1) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition, or other similar proceeding relating to the Company or its property,
(2) any proceeding for the liquidation, dissolution, or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(3) any assignment by the Company for the benefit of creditors, or
(4) any other marshaling of the assets of the Company, all Senior Debt (including any interest on such Senior Debt accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities, or other property, shall be made to any holder of any of the Receivables Purchase Agreement hereinafter describedNotes on account of such Notes. Any payment or distribution, whether in cash, securities, or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Debt at the time outstanding and to any securities issued in respect of such Senior Debt under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) owed be payable or deliverable in respect of the Notes shall be paid or delivered directly to Wachovia Bankthe holders of Senior Debt in accordance with the priorities then existing among such holders until all Senior Debt (including any interest on such Senior Debt accruing after the commencement of any such proceedings) shall have been paid in full. In the event of any such proceeding, National Associationafter payment in full of all sums owing with respect to Senior Debt, as Administrative Agent (the holders of the Notes, together with its successors the holders of any obligations of the Company ranking on a parity with the Notes, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of (and premium, if any) and interest on the Notes and such other obligations before any payment or other distribution, whether in cash, property, or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Notes and such capacityother obligations. The rights of holders of Senior Debt under this Section do not extend to any payment or distribution, whether in cash, securities or other property, to the “Administrative Agent”) extent applied to the Trustee’s rights to compensation, reimbursement of expenses or indemnification. In the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities, or other property (other than securities of the Company or any other corporation provided for itself by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Debt at the time outstanding and various other purchasers from time to time party thereto (the “Purchasers” any securities issued in respect of such Senior Debt under any such plan of reorganization or “Senior Interest Holders”readjustment), pursuant that certain Receivables Purchase Agreement dated as shall be received by the Trustee or any holder of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to Notes in contravention of any of the terms of this Section 3206, have such payment or distribution or security shall be received in trust for the right benefit of, and shall be paid over or delivered and transferred to, the holders of the Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for applications to the payment of all Senior Debt remaining unpaid to the extent necessary to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repaymentsuch Senior Debt in full. In the event of the failure of the Trustee or any holder of the Notes to endorse or assign any such payment, distribution, or security, each holder of Senior Debt is irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Debt shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Notes by any act or failure to act on the part of the Company. Nothing contained in this Section 206 shall impair, as between the Company and the holders of Notes, the obligation of the Company to pay to the holders of the Notes the principal of (and premium, if any) and interest on such Notes or prevent the Trustee or the holders of the Notes from exercising all rights, powers and remedies otherwise permitted by applicable law or under this Indenture upon a default or Event of Default, all subject to the rights of the holders of the Senior Debt to receive cash, securities, or other property otherwise payable or deliverable to the holders of the Notes. Senior Debt shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities, or other property equal to the amount of such Senior Debt then outstanding. Upon the payment in full of all Senior Debt, the rights of the holders of Notes of each series shall be subrogated to all rights of any holders of Senior Debt to receive any further payments or distributions applicable to the Senior Debt until the indebtedness evidenced by the Notes shall have been paid in full, and such payments or distributions received by such holders of Notes, by reason of such subrogation, of cash, securities, or other property which otherwise would be paid or distributed to the holders of Senior Debt shall, as between the Company and its creditors other than the holders of Senior Debt, on the one hand, and such holders of Notes, on the other hand, be deemed to be a payment by the Company on account of Senior Debt, and not on account of the Notes. Notwithstanding the foregoing or anything else in this Section 206 contained, at any time after the 123rd day following the date of deposit of money and U.S. Government Obligations pursuant to Article IV or XIII (provided all conditions set out in the applicable Article shall have been satisfied), the funds (including U.S. Government Obligations) so deposited and any interest thereon will not be subject to any rights of holders of Senior Debt including, without limitation, those arising under this Section 206; provided that no event described in clause (4) or (5) of Section 501 of the Base Indenture has occurred during such 123-day period. The provisions of this Section 206 shall not impair any rights, interests, remedies, or powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Indenture.
(b) In the event and during the continuation of any default in the payment of the principal of or any premium or interest on any Senior Debt beyond any applicable grace period with respect to such Senior Debt, or in the event that any event of default with respect to any Senior Debt shall have occurred and be continuing permitting the holders of such Senior Debt (or the trustee on behalf of the holders of such Senior Debt) to declare such Senior Debt due and payable prior to the date on which it would otherwise have become due and payable, unless and until such event of default shall have been cured or waived or shall have ceased to exist and any such declaration and its consequences shall have been rescinded or annulled, or in the event any judicial proceeding shall be pending with respect to any such default in payment or event of default, then no payment (including any payment which may be payable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Notes) shall be made by the Company on account of the principal of or any premium or interest on the Notes or on account of the purchase or other acquisition of Notes, provided, however, that nothing in this Section 206 shall prevent the satisfaction of any sinking fund payment in accordance with Article XII of the Base Indenture by delivering and crediting pursuant to Section 1202 of the Base Indenture Notes which have been acquired (upon redemption or otherwise) prior to such default in payment or event of default. Subject to Section 206(d), in the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the holders of the Notes prohibited by the foregoing provisions of this Section 206(b), and if such fact shall, at or prior to the time of such payment, have been made known in a writing delivered to a responsible officer of the Trustee at the Corporate Trust Office by a holder of Senior Debt or the Company or, as the case may be, such holder of Notes, then and in such event such payment shall be paid over and delivered to the Company. The provisions of this Section 206(b) shall not apply to any payment with respect to which Section 206(a) would be applicable.
(c) Upon any payment or distribution of assets of the Company referred to in this Section 206, the Trustee and the holders of the Notes shall be entitled to conclusively rely upon an order or decree made by any court of competent jurisdiction in which such dissolution or winding up or liquidation or reorganization or arrangement proceedings are pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors, or other Person making such payment or distribution, delivered to the Trustee or to the holders of the Notes, for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount of or payable on and the amount or amounts paid or distributed on such Senior Debt or other indebtedness, and all other facts pertinent to such Senior Debt or other indebtedness or to this Section 206. In the absence of any such bankruptcy trustee, receiver, assignee, or other Person, the Trustee shall be entitled to conclusively rely upon a written notice by a Person representing itself, himself or herself to be a holder of Senior Debt (or a trustee or representative on behalf of such holder) as evidence that such Person is a holder of such Senior Debt (or is such a trustee or representative), of the amount of or payable on and the amount or amounts paid or distributed on such Senior Debt or other indebtedness, and of all other facts pertinent to such Senior Debt or other indebtedness. In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payments or distributions pursuant to this Section 206, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such Person, as to the extent to which such Person is entitled to participate in such payment or distribution, and as to other facts pertinent to the rights of such Person under this Section 206, and if such evidence is not furnished, the Trustee may withhold any payment to such Person pending judicial determination as to the right of such Person to receive payment. The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Debt, and shall not be liable to any such holders if it shall pay over or deliver to the holders of the Notes or the Company or any other Person, cash, securities, or other property to which any holders of Senior Debt shall be entitled by virtue of this Section 206 or otherwise. With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations with respect to the holders of Senior Debt shall be read into this Indenture against the Trustee.
(d) Nothing contained in this Section 206 (except in Section 206(e)) or elsewhere in this Indenture, or in the Notes, shall prevent (i) the Company at any time, except during the pendency of any dissolution, winding up, liquidation, readjustmentor reorganization proceedings referred to in Section 206(a) or under the conditions specified in Section 206(b), reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling from making payments of the assets and liabilities principal of Borrower (or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holderspremium, if any. In accepting this Note, ) or interest on the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge Notes or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without application by the advance written consent Trustee or any Paying Agent of any moneys deposited with it under this Indenture to payments of the Administrative Agentprincipal of or interest on the Notes, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any timethe time of such deposit, any payment (in whole a responsible officer of the Trustee or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstatedsuch Paying Agent, as the case may be, as though had not received at the Corporate Trust Office the Officers’ Certificate or written notice provided for in Section 206(e) of any event prohibiting the making of such deposit, or if, at the time of such deposit (whether or not in trust) by the Company with the Trustee or any Paying Agent (other than the Company) such payment had would not have been made; (iv) prohibited by the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest HoldersSection 206, and the Administrative Trustee or any Paying Agent shall not be affected by any notice to the contrary received by it on or after such date.
(e) Anything in this Section 206 or elsewhere contained in this Indenture to the Purchaser may proceed contrary notwithstanding, the Trustee shall not at any time be charged with knowledge of the existence of any facts which would prohibit the making of any payment of moneys to enforce or by the Trustee, and shall be entitled conclusively to assume that no such provisions facts exist and that no event specified in Section 206(a) or Section 206(b) has happened, unless and until a responsible officer of the Trustee shall have received at the Corporate Trust Office (i) an Officers’ Certificate to that effect or (ii) notice in writing to that effect signed by or on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against holder or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupmentholders, or assert their representatives, of Senior Debt who shall have been certified by the Company or otherwise established to the reasonable satisfaction of the Trustee to be such holder or holders or representatives or from any counterclaimtrustee under any indenture pursuant to which such Senior Debt shall be outstanding; and before the receipt of any such Officers’ Certificate or written notice, against Borrowerthe Trustee shall be entitled in all respects to assume that no such facts exist; provided, in each case so long as there however, that if the Trustee shall not have elapsed one year and one day since received the Final Payout Date has occurred; and Officers’ Certificate or the written notice provided for in this Section 206(e) at least three (vii3) Business Days prior to the Lender expressly recognizes and agrees that date upon which by the obligations represented by this Note are not secured by terms hereof any interest in money may become payable for any of the assets of Borrower, purpose (including, without limitation, the payment of the principal of or interest on any Receivables Security) then, anything herein contained to the contrary notwithstanding, the Trustee shall have all power and authority to receive such money and to apply the same to the purpose for which such money were received and shall not be affected by any notice to the contrary which may be received by it during or Related Securityafter such three (3) Business Day period. The provisions Company shall give prompt written notice to the Trustee and to the Paying Agent of any facts which would prohibit the payment of money or assets to or by the Trustee or any Paying Agent.
(f) Each holder of Notes by such holder’s acceptance thereof authorizes and directs the Trustee on such holder’s behalf to take such action as may be necessary or appropriate to effectuate the subordination as between such holder and holders of Senior Debt as provided in this Section 206 and appoints the Trustee its attorney-in-fact for any and all such purposes.
(g) The Trustee shall be entitled to all the rights set forth in this Section 3 are intended solely for 206 with respect to any Senior Debt which may at the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders).time be hel
Appears in 2 contracts
Sources: Second Supplemental Indenture (Bridge Bancorp Inc), First Supplemental Indenture (Bridge Bancorp Inc)
Subordination. Borrower and, by its acceptance (a) The payment of this Note, Lender hereby acknowledge and agree that any and all payments of the Subordinated Debt is hereby expressly made in respect of this Note are and shall remain subordinate and junior in right of payment to the payment of the principal amount of, and all Aggregate Unpaids (as defined interest and premium on, and all other amounts in respect of, the Senior Debt, to the extent and in the Receivables Purchase Agreement hereinafter describedmanner set forth herein.
(b) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of (1) any dissolutioninsolvency, winding upbankruptcy, receivership, liquidation, readjustmentreorganization, reorganization or other similar event relating to Borrowerarrangement, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or other similar proceeding relative to the Borrower, its creditors or its Property, or (2) any proceeding for the voluntary or involuntary liquidation, dissolution or other marshaling winding up of the assets Borrower whether or not involving insolvency or bankruptcy proceedings, then and liabilities of Borrower or in any sale of such event:
(i) the principal amount of, and all or substantially interest and premium on, and all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”)other amounts in respect of, the Senior Interest Debt (including interest thereon accruing after the commencement of any such proceeding) shall first be paid and performed in full and before any payment or distribution of any character, whether in cash before the Lender cash, securities or other Property, shall be entitled to receive and to retain made in respect of the Subordinated Debt;
(ii) any payment or distribution of any character, whether in cash, securities or other Property, which would otherwise (but for the terms hereof) be payable or deliverable in respect of the Subordinated Debt (including any payment or distribution in respect of the Subordinated Debt by reason of any other indebtedness of the Borrower being subordinated to this Note. In order the Subordinated Debt), shall be paid or delivered directly to implement the foregoingAdministrative Agent on behalf of the Lenders, or its representatives, until the principal amount of, and all interest and premium on, and all other amounts in accepting this Noterespect of, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests Debt shall have been paid and performed in full and in cash. In the event that the Subordinated Lender receives or any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit holder of the Senior Interest Holders Subordinated Debt irrevocably authorizes, empowers and directs all receivers, trustees, liquidators, conservators and others having authority in the premises to effect all such payments and deliveries;
(iii) the Subordinated Lender or any other holder of the Subordinated Debt shall be turned over by the Lender (1) execute and deliver to the Administrative Agent (for the benefit on behalf of the Senior Interest HoldersLenders or its representative or agent all such further instruments confirming the authorization referred to in the foregoing clause (ii) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Noteabove, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated (2) execute and deliver to the then existing Administrative Agent on behalf of the Lenders or its representative or agent any powers of attorney specifically confirming the rights of the Senior Interest Holders Administrative Agent (or such representative or agent) arising hereunder, (3) execute and deliver to the Administrative Agent on behalf of the Lenders or its representative or agent all proofs of claim, assignments of claim and other instruments as may be requested by the Administrative Agent or any Lender to enforce all claims upon or in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)Subordinated Debt, the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z4) shall take all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and other actions as may be requested by the Administrative Agent or the Purchaser may proceed any Lender to enforce such provisions on behalf all claims upon or in respect of each the Subordinated Debt.
(c) Until and unless the principal amount of, and all interest and premium on, and all other amounts in respect of, the Senior Debt shall have been paid in full, the Borrower shall not make, and the Subordinated Lender shall not receive, accept or retain, any payments of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against principal or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship interest or other similar proceeding or action or(B) exercise any right amount on account of set-off or recoupmentthe Subordinated Debt; provided, or assert any counterclaimhowever, against Borrowerthat the Borrower may make and the Subordinated Lender may receive, in each case accept and retain such payments so long as there no Default or Event of Default under, and as defined, in the LSA shall have occurred and be continuing and so long as the Borrower would not have elapsed one year and one day since be rendered insolvent, made unable to pay its debts as they come due or be left without adequate capital to pursue its business after giving effect to such payment.
(d) The Borrower agrees that, in the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees event that the obligations represented by this Note are not secured by any interest in any note or other obligation of the assets of BorrowerBorrower not evidencing Senior Debt, includingor any portion thereof, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable before its expressed maturity for any reason, the Borrower will give prompt notice, in accordance writing, of such happening to the Administrative Agent.
(e) So long as any of the Senior Debt shall remain unpaid, the Administrative Agent and the Lenders may at all times exercise any and all powers and rights which they now have or may hereafter acquire under, or with respect to any of the collateral subject to, the Senior Security Documents without having to obtain any consent or approval of the Subordinated Lender and without any accountability to the Subordinated Lender, nor shall it have any liability to the Subordinated Lender for any action taken or failure to act with respect to any of such powers, rights or collateral.
(f) Until the entire principal amount of, and all interest and premium on, and all other amounts in respect of, the Senior Debt shall have been finally and indefeasibly paid in full, the Subordinated Lender shall not enforce any right or remedy (other than requiring payments in the absence of an Event of Default) or cause the Subordinated Debt to be accelerated or otherwise to become due prior to its expressed maturity, which it now has or may hereafter have against the Borrower or its Property, including without limitation, rights and remedies under any mortgage, deed of trust or security agreement.
(g) If, notwithstanding the provisions of this Agreement, any payment or distribution of any character (whether in cash, securities or other Property) or any security shall be received by the Subordinated Lender in contravention of the terms hereof of this Agreement, and before the entire principal amount of, and all interest and premium on, and all other amounts in respect of, the Senior Debt shall have been finally and indefeasibly paid in full, such payment, distribution or security shall not be commingled with any asset of the Subordinated Lender, but shall be held in trust for the benefit of, and shall be paid over or delivered and transferred to, the Administrative Agent, or its representatives or agents, for application to the payment of all Senior Debt remaining unpaid, until the principal amount of, and all interest and premium (including interest thereon accruing after the commencement of any proceedings described in Section 1(b) hereof) on, and all other amounts in respect of, the Senior Debt shall have been finally and indefeasibly paid in full.
(h) Until the principal amount of, and all interest and premium on, and all other amounts in respect of, the Senior Debt shall have been finally and indefeasibly paid in full, the Subordinated Lender shall have no right of subrogation, reimbursement or indemnity whatsoever and no right of recourse to or with respect to any assets or Property of the Borrower or to affect then relative any collateral for the Senior Debt.
(i) This Agreement, without further reference, shall pass to and may be relied on and enforced by any transferee or subsequent holder of the Senior Debt. In the event of any sale, assignment, disposition or other transfer of the Subordinated Debt, the Subordinated Lender shall cause the transferee thereof to execute and deliver to the Administrative Agent a written instrument signed by the transferee, in form and substance satisfactory to the Administrative Agent, providing for the continued subordination of the Subordinated Debt to the Senior Debt as provided for herein and for the continued effectiveness of all of the rights of the Lender Administrative Agent and creditors of Borrower (other than the Senior Interest Holders)Lenders arising under this Agreement.
Appears in 2 contracts
Sources: Subordination Agreement (Asc Holdings Inc), Subordination Agreement (Asc Holdings Inc)
Subordination. Borrower and, by its acceptance of this Note, Lender (a) The parties hereto hereby acknowledge and agree that any and all payments made in respect of this Note Services Fees are intended to be, and shall remain subordinate be, subordinated to: (i) the prior payment in full in cash of the Obligations under the ABL Credit Agreement and junior in right of payment the other Loan Documents, including, without limitation, all principal amounts, reimbursement obligations, interest and fees (including any interest and fees accruing subsequent to all Aggregate Unpaids a Proceeding (as defined below) whether or not such interest or fees constitute allowed claims in any such Proceeding), and premium, if any, and (ii) termination of the Receivables Purchase Agreement hereinafter describedcommitments in respect thereof (the occurrence of the events specified in both clauses (i) owed to Wachovia Bank, National Association, as Administrative Agent and (together with its successors in such capacityii) of this paragraph, the “Administrative AgentDischarge of ABL Obligations”).
(b) for itself The parties hereto hereby acknowledge and various agree that any Services Fees are intended to be, and shall be, subordinated to: (i) the prior payment in full in cash of the Obligations under the Term Loan Credit Agreement and the other purchasers from time Loan Documents, including, without limitation, all principal amounts, reimbursement obligations, interest and fees (including any interest and fees accruing subsequent to time party thereto a Proceeding (as defined below) whether or not such interest or fees constitute allowed claims in any such Proceeding), and premium, if any, and (ii) termination of the commitments in respect thereof (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as occurrence of December 21, 2009 by the events specified in both clauses (i) and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to timeii) of this paragraph, the “Receivables Purchase AgreementDischarge of Term Loan Obligations” and, together with the “Discharge of ABL Obligations, the “Discharge of Obligations”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, .
(c) The parties hereto hereby agree that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character by any Company to Holdings for payment to Edgen (or any Affiliate thereof) under the Services Agreement, whether in cash, property, securities (other than Permitted Junior Securities (as defined below)) or otherwise (a “Services Fee Payment”) is subordinated to the Obligations. The parties hereto hereby agree that no Services Fee Payment shall be made, directly or indirectly, by or on behalf of Holdings (to the extent made with any payment or distribution from Borrower a Company) or from any Company following the occurrence and during the continuation of a Default or an Event of Default; provided that, so long as no Event of Default under Section 8.01(g) or (h) of each Credit Agreement has occurred and is then continuing, the Companies may make the payments to Holdings or Edgen to the extent (and only to the extent) expressly permitted by Section 6.08 of each Credit Agreement and notwithstanding the occurrence or continuation of a Default or an Event of Default or any other source whatsoeverprovision of this Agreement, Edgen may receive its out-of-pocket expenses as set forth in the Services Agreement (but subject at all times to any maximum threshold set forth in Section 6.08 of each Credit Agreement). For purposes of this Agreement, “Permitted Junior Securities” shall mean any unsecured debt or equity securities of Holdings or any Company that are distributed to Edgen in respect of this Note, other than as expressly permitted by the terms any Services Fee Payments pursuant to a confirmed plan of this Note, such payment reorganization or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees adjustment that (i) are subordinated in right of payment to the Lender shall notObligations to at least the same extent as the Services Fee Payments are subordinated to the Obligations pursuant to this Agreement, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with do not have any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interestsmaterial terms, and these provisions are made for not subject to or entitled to the benefit of any agreement or instrument that has material terms, that are less favorable (taken as a whole) to the Senior Interest Holders, and Lenders than the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions terms set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Services Agreement.
Appears in 2 contracts
Sources: Credit Agreement (Edgen Group Inc.), Credit Agreement (Edgen Group Inc.)
Subordination. Borrower andDuring the continuance of a Cash Control Event, by its acceptance no Credit Party shall make any payments or advances of this Noteany kind, Lender hereby acknowledge directly or indirectly, on any debts and agree that liabilities to any other Credit Party, Investor or the Investment Advisor whether now existing or hereafter arising and whether direct, indirect, several, joint and several, or otherwise, and howsoever evidenced or created (collectively, the “Other Claims”). All Other Claims, together with all payments made in respect Liens on assets securing the payment of this Note are and all or any portion of the Other Claims shall remain subordinate at all times during the continuance of a Cash Control Event be subordinated to and junior in right of and in payment to all Aggregate Unpaids the Obligations (as defined in the Receivables Purchase Agreement hereinafter describedother than (x) owed to Wachovia Bankcontingent obligations for which no claim has yet been made, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”y) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, Obligations in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the any Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests Hedge Agreement that have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated cash collateralized or otherwise satisfied pursuant to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (iSection 2.15(h) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) any Letter of Credit obligations which have been fully Cash Collateralized) and all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, Liens on assets securing all or any thereofportion of the Obligations (other than (x) contingent obligations for which no claim has yet been made, (y) any Obligations in respect of any Lender Hedge Agreement that have been cash collateralized or otherwise satisfied pursuant to Section 2.15(h) and (z) any security therefor; (v) these provisions constitute a continuing offer from the holder Letter of this Note to all Persons who become the holders of, or who continue to hold, Senior InterestsCredit obligations which have been fully Cash Collateralized), and these each Credit Party agrees to take such actions as are necessary to provide for such subordination between it and any other Credit Party, inter se, including but not limited to including provisions are made for such subordination in the benefit of documents evidencing the Senior Interest Holders, Other Claims. The Administrator and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes Investment Advisor acknowledges and agrees that at any time a Cash Control Event has occurred and is continuing, the obligations represented by this Note are not secured by payment of any interest in any of the assets of Borrower, including, without limitation, any Receivables and all management or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors fees (other than reimbursement of documented costs or expenses and management fees, in the Senior Interest Holdersaggregate amount of not more than $2,000,000 while such Cash Control Event is continuing) due and owing to it from any Credit Party shall be subordinated to and inferior in right and payment to the Obligations (other than (x) contingent obligations for which no claim has yet been made, (y) any Obligations in respect of any Lender Hedge Agreement that have been cash collateralized or otherwise satisfied pursuant to Section 2.15(h) and (z) any Letter of Credit obligations which have been fully Cash Collateralized) in all respects. For the Lenderavoidance of doubt, Borrower’s obligation, which is unconditional and absolute, no Credit Party shall be deemed to pay have failed to perform under or otherwise comply with its obligations under the Lender Constituent Documents solely by the principal reason of and interest on this Note as and when the same shall become due and payable any action or inaction of such Credit Party in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)this Section 5.4.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Fortress Private Lending Fund), Revolving Credit Agreement (Fortress Private Lending Fund)
Subordination. Except as otherwise provided in this Section 12.8, and except for expenses paid by one Borrower for the other Borrower’s benefit, any indebtedness of any Borrower now or hereafter owing to any other Borrower is hereby subordinated to the Obligations, whether heretofore, now or hereafter created, and whether before or after notice of termination hereof, and, by its acceptance following the occurrence and during the continuation of this Notean Event of Default, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). no Borrower shall, subject without the prior consent of Agent, pay in whole or in part any of such indebtedness nor will any such Borrower accept any payment of or on account of any such indebtedness at any time while such Borrower remains liable hereunder. At the request of Agent, after the occurrence and during the continuance of an Event of Default, each Borrower shall pay to the terms of this Section 3, have the right to pay Agent all or any part of such subordinated indebtedness and any amount so paid to Agent at its request shall be applied to payment of the unpaid principal amount Obligations. Each payment on the indebtedness of this Note without premium or penalty at any time; provided, that interest Borrower to the other Borrowers received in violation of any of the provisions hereof shall be deemed to have been received by any other Borrower as trustee for Agent and Lenders and shall be paid over to Agent immediately on account of the amount repaid Obligations, but without otherwise affecting in any manner any such Borrower’s liability under any of the provisions of this Agreement. Each Borrower agrees to and including file all claims against the date other Borrowers in any bankruptcy or other proceeding in which the filing of repayment. In the event claims is required by law in respect of any dissolution, winding up, liquidation, readjustment, reorganization or indebtedness of the other similar event relating Borrowers to such Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender Agent shall be entitled to receive and all of any such Borrower’s rights thereunder. If for any reason, after Agent's request pertaining to retain any payment or distribution such filing, any such Borrower fails to file such claim at least thirty (30) days prior to the last date on which such claim should be filed, Agent, as such Borrower’s attorney-in-fact, is hereby authorized to do so in respect to this Note. In order to implement the foregoingBorrowers’ name or, in accepting this NoteAgent’s discretion, the Lender hereby irrevocably agrees that the Administrative Agentto assign such claim to, and cause a proof of claim to be filed in the name of the Lender of, Agent’s nominee. In all such cases, whether in administration, bankruptcy or otherwise, may demandthe person or persons authorized to pay such claim shall pay to Agent the full amount payable on the claim in the proceeding, ▇▇▇ for, collect, receive and receipt to the full extent necessary for that purpose any and such Borrower hereby assigns to Agent all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect Borrower’s rights to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by to which such Borrower otherwise would be entitled. If the Senior Interest Holders in respect of this Noteamount so paid is greater than any such Borrower’s liability hereunder, while any Bankruptcy Proceedings are pending Agent will pay the Lender shall not be subrogated excess amount to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)person legally entitled thereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (Jazz Technologies, Inc.), Loan and Security Agreement (Jazz Technologies, Inc.)
Subordination. Borrower and, (a) The obligations of the Company evidenced by its acceptance of this Subordinated Note, Lender hereby acknowledge including the principal and agree that any and all payments made in respect of this Note are and interest, shall remain be subordinate and junior in right of payment to all Aggregate Unpaids (as defined in its obligations to its general and secured creditors, whether now outstanding or hereafter incurred, except such other creditors holding obligations of the Receivables Purchase Agreement hereinafter described) owed Company ranking by their terms on a parity with or junior to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”)this Subordinated Note. Borrower shall, subject to the terms No provision of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Subordinated Note without premium or penalty at any time; provided, that interest shall be paid construed to prohibit or restrict the Company’s ability to issue, renew or extend any senior indebtedness or obligations that rank on the amount repaid a parity with or junior to and including the date of repaymentthis Subordinated Note. In the event of any dissolutioninsolvency, receivership, conservatorship, reorganization, readjustment of debt, marshaling of assets and liabilities or similar proceedings or any liquidation or winding up, liquidation, readjustment, reorganization up of or other similar event relating to Borrowerthe Company, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender obligations shall be entitled to receive and to retain be paid in full before any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name shall be made on account of the Lender principal of or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to interest on this Subordinated Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that of any such proceedings, after payment in full of all sums owing on such prior obligations, the Lender receives Holder, together with holders of any obligations of the Company ranking on a parity with this Subordinated Note (including but not limited to the holders of the other Subordinated Notes), shall be entitled to be paid from the remaining assets of the Company the unpaid principal thereof and any interest thereon before any payment or other distribution of any kind or character from Borrower or from other source whatsoeverdistribution, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and whether in cash, transferproperty or otherwise, pledge or assign, or commence legal proceedings to enforce or collect this Note shall be made on account of any capital stock or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent obligations of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect Company ranking junior to Borrower until at least one year and one day this Subordinated Note. Nothing herein shall have passed since impair the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any obligation of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligationCompany, which is unconditional absolute and absoluteunconditional, to pay the Lender the principal of and interest on this Subordinated Note as according to its terms.
(b) Notwithstanding the provisions of Section 6(a) above, the obligations of the Company evidenced by this Subordinated Note, including the principal and when interest, shall be senior in right and interest of payment to the indebtedness of the Company in connection with any future indebtedness of the Company that is expressly made junior to this Subordinated Note by the terms of such indebtedness. Nothing herein shall act to prohibit, limit or impede the Company from issuing additional debt of the Company having the same shall become due and payable rank as the Subordinated Notes or which may be junior or senior in accordance with rank to the terms hereof or to affect then relative rights Subordinated Notes.
(c) The Holder, if a depository institution, waives any applicable right of the Lender and creditors of Borrower (other than the Senior Interest Holders)offset by it as a lender.
Appears in 2 contracts
Sources: Subordinated Note Purchase Agreement (First Western Financial Inc), Subordinated Note Purchase Agreement (First Savings Financial Group Inc)
Subordination. Borrower and, The Obligations ceasing or the assertion in writing by its acceptance any Loan Party that the Obligations cease to constitute senior indebtedness under the subordination provisions of this Note, Lender hereby acknowledge and agree that any and all payments made document or instrument evidencing any permitted Subordinated Indebtedness in respect excess of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in Threshold Amount or any such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated subordination provision being invalidated or otherwise modified from time ceasing, for any reason, to timebe valid, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part binding and enforceable obligations of the unpaid principal amount of this Note without premium or penalty at any timeparties thereto; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or completethen, and whether in bankruptcy, insolvency or receivership proceedings, or upon every such event (other than an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings event with respect to any and all claims of the Lender relating to this Note, Borrowers described in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment clause (f) or other distribution of any kind or character from Borrower or from other source whatsoever, in respect (g) of this NoteArticle)) and at any time thereafter during the continuance of such event, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for may, and at the benefit request of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received Required Lenders shall, by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated notice to the then existing rights Lead Borrower, take any of the Senior Interest Holders in respect of following actions, at the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that same or different times: (i) terminate the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note Commitments or any rights in respect hereof; Additional Revolving Commitments, and thereupon such Commitments and/or Additional Revolving Commitments shall terminate immediately, (ii) declare the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect Revolving Loans then outstanding to Borrower until at least one year be due and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (payable in whole (or in part) of , in which case any Senior Interest is rescinded or must principal not so declared to be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwisedue and payable may thereafter be declared to be due and payable), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender thereupon the principal of the Revolving Loans so declared to be due and payable, together with accrued interest on this Note as thereon and when all fees and other obligations of the same Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower and (iii) require that the US Borrower deposit in accordance with the terms hereof or US LC Collateral Account, the Canadian Borrowers deposit in the Canadian LC Collateral Account and the European Borrowers deposit in the European LC Collateral Account, an additional amount in Cash as reasonably requested by the Issuing Banks (not to affect then relative rights exceed 101% of the Lender and creditors relevant face amount) of the then outstanding US LC Exposure (minus the amount then on deposit in the US LC Collateral Account), Canadian LC Exposure (minus the amount then on deposit in the Canadian LC Collateral Account) or European LC Exposure (minus the amount then on deposit in the European LC Collateral Account), as applicable; provided that upon the occurrence of an event with respect to any Borrower (other than any Borrower that is a Canadian Loan Party, Dutch Loan Party or UK Loan Party that is not bound by the Senior Interest Holders)applicable Debtor Relief Laws) described in clause (f) or (g) of this Article, any such Commitments and/or Additional Revolving Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC or the PPSA.
Appears in 2 contracts
Sources: Abl Credit Agreement (PQ Group Holdings Inc.), Abl Credit Agreement (PQ Group Holdings Inc.)
Subordination. Borrower and8.1 The aggregate principal amount owing to the Lender from time to time under this Subordinated Note Agreement, the Note and the other Loan Documents all accrued and unpaid interest thereon, and any other indebtedness evidenced by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made or otherwise owing in respect of this Subordinated Note are Agreement, the Note and the other Loan Documents (collectively, the "SUBORDINATED INDEBTEDNESS") is and shall remain be subordinate and junior in right of payment and otherwise, to all Aggregate Unpaids (as defined the extent and in the Receivables Purchase Agreement manner hereinafter described) owed set forth, to Wachovia Bankthe prior payment in full of all of the Senior Indebtedness (an hereinafter defined), National Association, as Administrative Agent (together with its successors in such capacitywhether now or hereafter existing. For all purposes of this Subordinated Note Agreement, the “Administrative Agent”Senior Indebtedness shall not be deemed to have been paid in full until the latest of (A) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “payment in full in cash of all of the Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers Indebtedness and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated expiration or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms termination of this Section 3, have the right to pay all or any part of the unpaid principal amount commitments of this Note without premium the Secured Parties and the other holders of any of the Senior Indebtedness thereunder, (B) the expiration or penalty at any time; provided, that interest shall be paid on termination of all of the amount repaid to Bank Hedge Agreements and including (C) the date of repayment. Termination Date.
8.2 In the event of any dissolution, winding up, liquidation, readjustmentarrangement, reorganization reorganization, adjustment, protection, relief or other similar event relating to Borrowercomposition of Borrower or its debts, whether voluntary or involuntary, partial or complete, and whether in any bankruptcy, insolvency, arrangement, reorganization, receivership, relief or other similar action or proceeding under the United States Federal Bankruptcy Code or any other federal or state bankruptcy or insolvency laws or receivership proceedingsany similar Requirements of Law of any other jurisdiction covering the protection of creditors' rights or the relief of debtors (collectively, the "Insolvency Laws"), or upon an assignment for the benefit of creditors, creditors or any other marshaling of the property, assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower otherwise (such proceedings being herein collectively called “Bankruptcy Proceedings”each, an "Insolvency Proceeding"), the Senior Interest shall first be paid and performed in full and in cash before the Lender Creditors shall be entitled to receive and payment in full of all of the Senior Indebtedness before the Lender is entitled to retain receive any payment or distribution of any kind or character on account of all or any of the Subordinated Indebtedness, and, to that end, any payment or distribution of any kind or character (whether in cash, property or securities) that otherwise would be payable or deliverable upon or with respect to this Note. In order the Subordinated Indebtedness in any such Insolvency Proceeding (including, without limitation, any payment that may be payable by reason of any other Indebtedness of Borrower being subordinated to implement payment of the foregoingSubordinated Indebtedness) shall be paid or delivered forthwith directly to the Senior Representative, for the ratable account of the Senior Secured Creditors and the Senior Notes Creditors, in accepting this Notethe same form as so received (with any necessary endorsement or assignment), for application (in the case of cash) to, or to be held as collateral (in the case of noncash property or securities) for, the payment or prepayment of the Senior Indebtedness until all of the Senior Indebtedness shall have been paid in full.
8.3 No payment or distribution of any property or assets of Borrower of any kind or character (including, without limitation, any payment that may be payable by reason of any other Indebtedness of Borrower being subordinated to payment of the Subordinated Indebtedness) shall be made by or on behalf of Borrower for or on account of any Subordinated Indebtedness, unless and until all of the Senior Indebtedness shall have been paid in full or unless such payment is expressly permitted to be made under Section 8(d)(i)(D) of the Fox Kids Guarantee and Sections 10.8 and 10.9 of the Indentures. Furthermore, so long as the Senior Indebtedness shall not have been paid in full, the Lender shall not (a) ask, demand, ▇▇▇ for, take or receive from Borrower, directly or indirectly, in cash or other property or by setoff or in any manner (including, without limitation, from or by way of collateral), payment of all or any of the Subordinated Indebtedness, except to the extent that such payment is expressly permitted to be made under Section 8(d)(i)(D) of the Fox Kids Guarantee and Sections 10.8 and 10.9 of the Indentures, (b) commence, or join with any creditor other than the Senior Representative in commencing, or directly or indirectly cause Borrower to commence, or assist Borrower in commencing, any Insolvency Proceeding, or (c) request or accept any collateral or other security for the Subordinated Indebtedness. If the Subordinated Lender, in contravention hereof, shall commence, prosecute or participate in any Insolvency Proceeding, then the Senior Representative may intervene and interpose as a defense or plea the terms of this Subordinated Note Agreement in its own name or in the name of the Subordinated Lender.
8.4 Until such time as all of the Senior Indebtedness has been paid in full, if any Insolvency Proceeding is commenced by or against Borrower:
(A) the Senior Representative is hereby irrevocably agrees that the Administrative Agent, authorized and empowered (in its own name or in the name of the Lender or otherwise), may but shall have no obligation, to demand, ▇▇▇ for, collect, collect and receive every payment or distribution otherwise payable to the Lender in respect of this Subordinated Note Agreement and receipt for any and all such payments or distributionsgive acquittance therefor, and fileto file claims and proofs of claim and take such other actions (including, prove without limitation, voting the Subordinated Indebtedness or enforcing any security interest or other lien securing payment of the Subordinated Indebtedness) as it may deem necessary or advisable for the exercise or enforcement of any of the rights or interests of the Senior Representative or any of the other Senior Creditors under this Subordinated Note Agreement; and
(B) the Lender shall duly and vote promptly take such action as the Senior Representative may reasonably request (i) to collect the Subordinated Indebtedness for the account of the Senior Representative, for the ratable benefit of the Senior Secured Creditors and the Senior Notes Creditors, and to file appropriate claims or consent proofs of claim in any respect of the Subordinated Indebtedness, (ii) to execute and deliver to the Senior Representative such Bankruptcy Proceedings with respect powers of attorney, assignments or other instruments as the Senior Representative may reasonably request in order to enable the Senior Representative to enforce any and all claims of with respect to, and any security interests and other liens securing payment of, the Subordinated Indebtedness and (iii) to collect and receive any and all payments or distributions that may be payable or deliverable upon or with respect to the Subordinated Indebtedness.
8.5 All payments or distributions upon or with respect to the Subordinated Indebtedness that are received by the Lender relating contrary to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect provisions of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution Subordinated Note Agreement shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (in trust for the benefit of the Senior Interest HoldersRepresentative and the other Senior Creditors, shall be segregated from other property or funds of the Lender and shall be paid or delivered forthwith directly to the Senior Representative, for the account of the Senior Secured Creditors and the Senior Notes Creditors, in the same form as so received (with any necessary endorsement or assignment), to be applied (in the case of cash) forthwithto, or held as collateral (in the case of noncash property or securities) for, the payment or prepayment of the Senior Indebtedness until all of the Senior Indebtedness shall have been paid in full.
8.6 To the extent that Borrower, the Lender or any of their respective Subsidiaries or any other guarantor of or provider of collateral for the Senior Indebtedness shall make any payment on the Senior Indebtedness that is subsequently invalidated, declared to be fraudulent or preferential or set aside or is required to be repaid to a trustee, receiver or any other party under any applicable Insolvency Law or equitable cause (any such payment being a "Voided Payment"), then to the extent of such Voided Payment, that portion of the Senior Indebtedness that had been previously satisfied by such Voided Payment shall be reinstated and continue in full force and effect as if such Voided Payment had never been made. Notwithstanding To the extent that the Lender shall have received any payments or distributions received subsequent to the date of the initial receipt of such Voided Payment by the Senior Interest Holders in respect of this Note, while Representative or any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the other Senior Interest Holders in respect of the Senior Interests until the Senior Interests Creditors and such payments have not been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments invalidated, declared to be fraudulent or preferential or set aside or required to be repaid to a trustee, receiver or any other party under the Receivables Purchase Agreement (the “Final Payout Date”)any applicable Insolvency Law or equitable cause, the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender obligated and hereby agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge any such payment so made or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or received shall be reinstated, as the case may be, as though such payment had not deemed to have been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence received in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made trust for the benefit of the Senior Interest HoldersRepresentative and the other Senior Creditors, and the Administrative Agent or Lender hereby agrees to pay to the Purchaser may proceed Senior Representative, upon demand, the full amount so received by the Lender during such period of time to enforce such provisions on behalf of each the extent necessary to fully restore to the Senior Representative and the other Senior Creditors the amount of such Persons; (vi) Voided Payment, which amount shall be applied as set forth in Section 8.5.
8.7 The Senior Representative is hereby authorized to demand specific performance of the subordination provisions of this Subordinated Note Agreement, whether or not Borrower shall have complied with any of the provisions hereof applicable to it, at any time when the Lender shall have failed to comply with any of the subordination provisions of this Subordinated Note Agreement. The Lender hereby irrevocably waives any defense based on the adequacy of a remedy at law which might be asserted as a bar to such remedy of specific performance.
8.8 The Lender will not not:
(Ai) institute againstCancel or otherwise discharge any of the Subordinated Indebtedness (except upon payment in full of all of the Senior Indebtedness or, join at any time and from time to time prior thereto, to the extent that such payment is expressly permitted to be made under Section 8(d)(i)(D) of the Fox Kids Guarantee and under Sections 10.8 and 10.9 of the Indentures), (ii) convert or exchange any of the Subordinated Indebtedness into or for any other Person Indebtedness (except to the extent expressly permitted by the Indentures), (iii) convert or exchange any of the Subordinated Indebtedness into or for any Equity Interest in instituting against Borrower or take otherwise (except to the extent expressly permitted by the Indentures) or (iv) subordinate any actionof the Subordinated Indebtedness to any Indebtedness of Borrower other than the Senior Indebtedness (except that no consent of the holders of the Senior Notes or either of the trustees for the Senior Notes shall be required to subordinate any of the Subordinated Indebtedness to any other Indebtedness of Borrower (although nothing herein shall limit the obligation of any holder of Indebtedness of Borrower to turn over or otherwise subordinate itself to any or all of the Senior Creditors in accordance with any subordination provisions applicable to such Indebtedness);
(B) Sell, direct assign, pledge, encumber or indirectotherwise dispose of any of the Subordinated Indebtedness; or
(C) Permit the terms of any of the Subordinated Indebtedness to be amended, waived, supplemented or otherwise modified in furtherance such a manner as could have an adverse effect upon the rights or contemplation interests of instituting againstthe Senior Representative or any of the other Senior Creditors under this Subordinated Note Agreement, Borrower any bankruptcyof the Loan Documents (as defined in the Credit Agreement), insolvencyeither of the Indentures or any of the other agreements, winding up, dissolution, receivership, conservatorship instruments or other similar proceeding documents evidencing or action or(B) otherwise setting forth the terms of any of the Senior Indebtedness.
8.9 No payment or distribution to the Senior Representative or any of the other Senior Creditors pursuant to the provisions of this Subordinated Note Agreement shall entitle the Lender to exercise any rights of subrogation in respect thereof, nor shall the Lender have any right of set-off reimbursement, restitution, exoneration, contribution or recoupment, indemnification whatsoever from any property or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in assets of Borrower or any of the assets other guarantors, sureties or providers of Borrowercollateral security for the Senior Indebtedness, or any right to participate in any claim or remedy of the Senior Representative or any of the other Senior Creditors against Borrower or any of the Collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law (including, without limitation, the right to take or receive from Borrower, directly or indirectly, in cash or other property or by setoff or in any Receivables other manner, payment or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose security on account of defining the relative rights such claim, remedy or right), until (i) all of the Lender, on Senior Indebtedness shall have been paid in full and all of the one hand, commitments of the Secured Parties and the Senior Interest Holders on other holders thereof shall have expired or been terminated, (ii) all of the other hand. Nothing contained in this Note is intended to Bank Hedge Agreements shall have expired or been terminated and (iii) the Termination Date shall impair, as between Borrower, its creditors (other than have occurred.
8.10 The holders of the Senior Interest Holders) Indebtedness may, at any time and the Lenderfrom time to time, Borrower’s obligation, which is unconditional and absolute, without any consent of or notice to pay the Lender or any other holder of the principal of Subordinated Indebtedness and interest on this Note as and when without impairing or releasing the same shall become due and payable in accordance with the terms hereof or to affect then relative rights obligations of the Lender and creditors hereunder:
(A) change the manner, place or terms of Borrower (other than payment of, or change or extend the time of payment of, or renew payment or change or extend the time or payment of, or renew or alter, the Senior Interest HoldersIndebtedness (including any change in the rate of interest thereon)., or amend, supplement or otherwise modify in any manner any instrument, agreement or other document under which any of the Senior Indebtedness is outstanding;
(B) sell, exchange, release, not perfect and otherwise deal with any of the property or assets of any Person at any time pledged, assigned or mortgaged to secure the Senior Indebtedness; (C) release any Person liable in any manner under or in respect of the Senior Indebtedness;
Appears in 2 contracts
Sources: Subordinated Promissory Note (Fox Kids Worldwide Inc), Subordinated Note Agreement (Fox Kids Worldwide Inc)
Subordination. Borrower andUpon payment by any Grantor of any Secured Obligations, all rights of such Grantor against the Borrowers or any other Grantor arising as a result thereof by its acceptance way of this Noteright of subrogation, Lender hereby acknowledge and agree that any and contribution, reimbursement, indemnity or otherwise shall in all payments made in respect of this Note are and shall remain respects be subordinate and junior in right of payment to the prior payment in full of all Aggregate Unpaids the Secured Obligations (other than (i) contingent indemnity obligations for then unasserted claims; and (ii) obligations and liabilities under Secured Hedge Agreements as defined in to which arrangements satisfactory to the Receivables Purchase Agreement hereinafter describedapplicable Hedge Bank shall have been made) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time termination of all Commitments to time, the “Receivables Purchase Agreement”)any Loan Party under any Loan Document. Borrower shall, subject If any amount shall erroneously be paid to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, Borrowers or any other marshaling Grantor on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of the assets and liabilities of Borrower Borrowers or any sale of all or substantially all of the assets of Borrower (other Grantor, such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender amount shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (held for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender Secured Parties and shall not promptly be subrogated paid to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or to be credited against the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any payment of the assets of BorrowerSecured Obligations, includingwhether matured or unmatured, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender Credit Agreement and creditors of Borrower the other Loan Documents. Subject to the foregoing, to the extent that any Grantor (other than the Senior Interest HoldersBorrowers) shall, under this Agreement or the Credit Agreement as a joint and several obligor, repay any of the Secured Obligations (an “Accommodation Payment”), then the Grantor making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Grantors in an amount equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Grantor’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Grantors. As of any date of determination, the “Allocable Amount” of each Grantor shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Grantor hereunder and under the Credit Agreement without (a) rendering such Grantor “insolvent” within the meaning of Section 101 (32) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Grantor with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Grantor unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Option Care Health, Inc.), First Lien Credit Agreement (Option Care Health, Inc.)
Subordination. Borrower and(a) Subject to Section 3.1, by its acceptance payment of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are the Subordinated Debt is and shall remain be expressly subordinate and junior in right of payment to all Aggregate Unpaids (as defined the prior payment in full in cash of the Senior Debt to the extent and in the Receivables Purchase Agreement hereinafter describedmanner set forth herein, and the Subordinated Debt is hereby so subordinated as a claim against Subordinated Borrower or any of the assets of Subordinated Borrower, whether such claim be (i) owed to Wachovia Bankin the event of any distribution of the assets of Subordinated Borrower upon any voluntary or involuntary dissolution, National Associationwinding-up, as Administrative Agent total or partial liquidation or reorganization, or bankruptcy, insolvency, receivership or other statutory or common law proceedings or arrangements involving Subordinated Borrower or the readjustment of its liabilities or any assignment for the benefit of creditors or any marshaling of its assets or liabilities (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”collectively called a "Reorganization"), pursuant that certain Receivables Purchase Agreement dated as of December 21or (ii) other than in connection with a Reorganization, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part prior payment in full in cash of the Senior Debt.
(b) If Subordinated Lender shall receive any payment in violation of the terms hereof, it shall hold such payment in trust for the benefit of the Senior Creditors and forthwith pay it over to the Senior Creditors, ratably according to the aggregate amounts remaining unpaid principal amount on account of this Note without premium or penalty at any time; providedthe Senior Debt, that interest shall be paid on the amount repaid for application to and including payment of the date of repayment. Senior Debt.
(c) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating Reorganization relative to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Subordinated Borrower or any sale of all or substantially its properties, then all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Debt shall first be paid and performed in full and in cash before any payment is made upon the Lender shall be entitled to receive Subordinated Debt, and to retain in any such proceedings any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in respect of the Subordinated Debt shall be paid or delivered directly to this Note. In order the Senior Creditors, ratably according to implement the foregoingaggregate amounts remaining unpaid on account of the Senior Debt, for application in accepting this Notepayment of the Senior Debt, unless and until all the Senior Debt is paid in full in cash, and Subordinated Lender hereby irrevocably agrees that authorizes the Administrative Agent, as attorney-in- fact for Subordinated Lender, to vote any claim or proof of claim in the name such proceedings in respect of the Lender Subordinated Debt, to file or otherwiseprove any claim in such proceedings in respect of the Subordinated Debt, may to demand, ▇▇▇ for, collectcollect and receive any such payment or distribution, receive and receipt for any and all to apply such payments payment or distributionsdistribution to the payment of the Senior Debt, and fileto take such other action (including acceptance or rejection of any plan of Reorganization) in the name of Subordinated Lender or of the relevant Senior Creditors as the Agent may deem necessary or advisable for the enforcement of the provisions hereof. Subordinated Lender shall execute and deliver such other and further powers of attorney, prove assignments, proofs of claim or other instruments, and vote or consent take such other actions, as may be requested by the Agent in order to enable the Agent to accomplish any such Bankruptcy Proceedings of the foregoing, but only with respect to any Subordinated Lender's capacity as a holder hereof and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, not in respect of this Noteany other relationship between Subordinated Lender and Subordinated Borrower. Consistent with, other than as expressly permitted by but not in limitation of, the terms of this Noteforegoing, in such payment or other distribution an event, the Agent shall be received for deemed to be the sole benefit assigned (and thus the holder) of the Senior Interest Holders such claims or proof of claims and shall be turned over by have the Lender right to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid assert and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though vote such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest claims in any of the assets of BorrowerReorganization, including, without limitation, through the filing of any Receivables proof of claim therein and the casting of any ballots to accept or Related Security. The provisions set forth reject any plan of reorganization proposed by, for, or with respect to any such Reorganization.
(d) In the event that, notwithstanding the foregoing, upon any such Reorganization, any payment or distribution of the assets of Subordinated Borrower of any kind or character, whether in this Section 3 are intended solely cash, property or securities, shall be received by Subordinated Lender in respect of the Subordinated Debt before all Senior Debt is paid in full in cash, such payment or distribution shall be held in trust for the purpose Senior Creditors and shall forthwith be paid over to the Senior Creditors, ratably according to the aggregate amounts remaining unpaid on account of defining the relative Senior Debt, for application to the payment of the Senior Debt until all Senior Debt shall have been paid in full in cash.
(e) Subordinated Lender agrees that, until the Senior Debt has been paid in full in cash, except as expressly provided by Section 3.1, it will not take, demand or receive, or take any action to accelerate or collect, any payment of all or any part of the Subordinated Debt.
(f) The Senior Creditors, or any of them, may, at any time and from time to time, without the consent of or notice to Subordinated Lender, without incurring any responsibility to Subordinated Lender, and without impairing or releasing any of the rights of any Senior Creditor, or any of the obligations of Subordinated Lender:
(i) change the amount or terms of or renew or extend any Senior Debt or enter into or amend in any manner any agreement relating to any Senior Debt;
(ii) sell, on exchange, release or otherwise deal with any property at any time pledged or mortgaged to secure any Senior Debt;
(iii) release anyone liable in any manner for the one handpayment or collection of any Senior Debt; and
(iv) exercise or refrain from exercising any rights against Subordinated Borrower and others (including Subordinated Lender).
(g) Subordinated Lender hereby waives notice of or proof of reliance by any Senior Creditor upon the provisions hereof, and the Senior Interest Holders on Debt shall conclusively be deemed to have been created, contracted, incurred or maintained in reliance upon the other hand. Nothing contained in this Note is intended to or provisions hereof.
(h) Each Senior Creditor shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights be a third-party beneficiary of the Lender and creditors provisions of Borrower (other than the Senior Interest Holders)this Section 3.2.
Appears in 2 contracts
Sources: Guaranty (Conseco Inc), Guaranty (Conseco Inc)
Subordination. Except as otherwise provided in this Section 14.7, any indebtedness of any Borrower now or hereafter owing to any other Borrower is hereby subordinated to the Obligations, whether heretofore, now or hereafter created, and whether before or after notice of termination hereof, and, by its acceptance following the occurrence and during the continuation of this Notean Event of Default, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). no Borrower shall, subject without the prior consent of Agent, pay in whole or in part any of such indebtedness nor will any such Borrower accept any payment of or on account of any such indebtedness at any time while such Borrower remains liable hereunder. At the request of Agent, after the occurrence and during the continuance of an Event of Default, each Borrower shall pay to the terms of this Section 3, have the right to pay Agent all or any part of such subordinated indebtedness and any amount so paid to Agent at its request shall be applied to payment of the unpaid principal amount Obligations. Each payment on the indebtedness of this Note without premium or penalty at any time; provided, that interest Borrower to the other Borrowers received in violation of any of the provisions hereof shall be deemed to have been received by any other Borrower as trustee for Agent and Lenders and shall be paid over to Agent immediately on account of the amount repaid Obligations, but without otherwise affecting in any manner any such Borrower’s liability under any of the provisions of this Agreement. Each Borrower agrees to and including file all claims against the date other Borrowers in any bankruptcy or other proceeding in which the filing of repayment. In the event claims is required by law in respect of any dissolution, winding up, liquidation, readjustment, reorganization or indebtedness of the other similar event relating Borrowers to such Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets Agent and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender Lenders shall be entitled to receive and all of any such Borrower’s rights thereunder. If for any reason any such Borrower fails to retain any payment or distribution file such claim at least thirty (30) days prior to the last date on which such claim should be filed, Agent, as such Borrower’s attorney-in-fact, is hereby authorized to do so in respect to this Note. In order to implement the foregoingBorrowers’ name or, in accepting this NoteAgent’s discretion, the Lender hereby irrevocably agrees that the Administrative Agentto assign such claim to, and cause a proof of claim to be filed in the name of the Lender of, Agent’s nominee. In all such cases, whether in administration, bankruptcy or otherwise, may demandthe person or persons authorized to pay such claim shall pay to Agent the full amount payable on the claim in the proceeding, ▇▇▇ forand to the full extent necessary for that purpose any such Borrower hereby assigns to Agent, collectfor itself and the ratable benefit of Secured Parties, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect Borrower’s rights to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by to which such Borrower otherwise would be entitled. If the Senior Interest Holders in respect of this Noteamount so paid is greater than any such Borrower’s liability hereunder, while any Bankruptcy Proceedings are pending Agent will pay the Lender shall not be subrogated excess amount to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)person entitled thereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (Pcm, Inc.), Loan and Security Agreement (Pc Mall Inc)
Subordination. Borrower anda. Unless otherwise agreed by each Authorized Representative, by its acceptance payment of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are the Subordinated Debt is and shall remain be expressly subordinate and junior in right of payment to all Aggregate Unpaids (as defined the prior payment in full in cash of the Senior Debt to the extent and in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bankmanner set forth herein, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. Subordinated Debt is hereby so subordinated as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all a claim against each Obligor or any part of the unpaid principal amount assets of this Note without premium or penalty at any time; providedsuch Obligor, that interest shall whether such claim be paid on the amount repaid to and including the date of repayment. In (i) in the event of any distribution of the assets of such Obligor upon any voluntary or involuntary dissolution, winding winding-up, liquidationtotal or partial liquidation or reorganization, readjustmentor bankruptcy, reorganization insolvency, receivership or other similar event relating to Borrower, whether voluntary statutory or involuntary, partial common law proceedings or complete, and whether in bankruptcy, insolvency arrangements involving such Obligor or receivership proceedings, the readjustment of its liabilities or upon an any assignment for the benefit of creditorscreditors or any marshaling of its assets or liabilities (collectively called a “Reorganization”), or any (ii) other marshaling than in connection with a Reorganization, prior to the payment in full in cash of the assets Senior Debt.
b. If any Holder shall receive any payment in violation of the terms hereof, it shall hold such payment in trust for the benefit of the Senior Creditors and liabilities forthwith pay it over to the Collateral Agent, for application to and payment of Borrower the First Lien Obligations in accordance with the terms of the Intercreditor Agreement.
c. Unless otherwise agreed by the Applicable Authorized Representative, in the event of any Reorganization relative to any Obligor or any sale of all or substantially its properties, then all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Debt shall first be paid and performed in full and in cash before any payment is made upon the Lender shall be entitled to receive Subordinated Debt, and to retain in any such proceedings any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in respect of this Subordinated Note shall be paid or delivered directly to this Note. In order to implement the foregoingCollateral Agent, for application in accepting this Notepayment of the Senior Debt, unless and until all the Lender Senior Debt is paid in full in cash, and the applicable Holder hereby irrevocably agrees that authorizes the Administrative Collateral Agent, as attorney-in-fact for such Holder, to vote any claim or proof of claim in the name such proceedings in respect of the Lender Subordinated Debt, to file or otherwiseprove any claim in such proceedings in respect of the Subordinated Debt, may to demand, ▇▇▇ for, collectcollect and receive any such payment or distribution, receive and receipt for any and all to apply such payments payment or distributionsdistribution to the payment of the Senior Debt, and fileto take such other action (including acceptance or rejection of any plan of Reorganization) in the name of such Holder or of the relevant Senior Creditors as the Applicable Authorized Representative may deem necessary or advisable for the enforcement of the provisions hereof. Such Holder shall execute and deliver such other and further powers of attorney, prove assignments, proofs of claim or other instruments, and vote take such other actions, as may be requested by the Applicable Authorized Representative or consent Collateral Agent in order to enable the Collateral Agent to accomplish any such Bankruptcy Proceedings of the foregoing, but only with respect to such Holder’s capacity as a holder hereof and not in respect of any other relationship between such Holder and all claims the applicable Obligor.
d. In the event that, notwithstanding the foregoing, upon any such Reorganization, any payment or distribution of the Lender relating to assets of any Obligor of any kind or character, whether in cash, property or securities, shall be received by any Holder in respect of this NoteSubordinated Note before all Senior Debt is paid in full in cash, such payment or distribution shall be held in each case until trust for the Senior Interests Creditors and shall forthwith be paid over to the Collateral Agent, for application to the payment of the Senior Debt until all Senior Debt shall have been paid and performed in full and in cash. In .
e. Each Holder agrees that, until the event that the Lender receives Senior Debt has been paid in full in cash, if an Event of Default shall have occurred and be continuing or would result therefrom, or if a Reorganization shall have commenced, it will not take, demand or receive, or take any action to accelerate or collect, any payment of all or other distribution any part of the Subordinated Debt.
f. The Senior Creditors, or any of them, may, at any time and from time to time, without the consent of or notice to any Holder, without incurring any responsibility to such Holder, and without impairing or releasing any of the rights of any Senior Creditor, or any of the obligations of such Holder:
i. change the amount or terms of or renew or extend any Senior Debt or enter into or amend in any manner any agreement relating to any Senior Debt;
ii. sell, exchange, release or otherwise deal with any property at any time pledged or mortgaged to secure any Senior Debt;
iii. release anyone liable in any manner for the payment or collection of any Senior Debt; and
iv. exercise or refrain from exercising any rights against any Obligor and others (including such Holder).
g. Each Holder hereby waives notice of or proof of reliance by any Senior Creditor upon the provisions hereof, and the Senior Debt shall conclusively be deemed to have been created, contracted, incurred or maintained in reliance upon the provisions hereof.
h. Each Obligor hereby waives diligence, presentment, demand, protest and notice of any kind whatsoever. The non-exercise by any Senior Creditor of any of its rights hereunder in any particular instance shall not constitute a waiver thereof in that or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (any subsequent instance.
i. The subordination provisions contained herein are for the benefit of the Senior Interest Holders) forthwith. Notwithstanding Creditors and their respective successors and assigns and may not (so long as any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement Debt (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights commitment to provide any Senior Debt) is then outstanding) be rescinded or cancelled or modified in respect hereof; (ii) the Lender shall not, any way without the advance prior written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Authorized Representative.
Appears in 2 contracts
Sources: Credit Agreement (Credit Acceptance Corp), Credit Agreement (Credit Acceptance Corp)
Subordination. Borrower andEach Holder, by its acceptance accepting the Note agrees that the principal, premium, if any, and other payment obligations of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of kind evidenced by this Note are subordinated in right of payment, to the prior payment in full of all “Senior Indebtedness” of the Company (whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed). The term “Senior Indebtedness” shall include: (i) money borrowed from banks, commercial finance lenders, insurance companies or other financial institutions regularly engaged in the business of lending money that is required to be senior to this Note by the terms of such indebtedness, (ii) indebtedness incurred in the ordinary course of business for the purpose of granting security interests in the Company’s accounts receivable or purchase orders for purposes of factoring or financing such accounts receivable or purchase orders respectively, or similar transactions, (iii) indebtedness identified as Senior Indebtedness (including all indebtedness under the Loan and Security Agreement dated as of January 29, 2010 between Silicon Valley Bank and the Company, as the same shall remain subordinate be amended, and junior (iv) purchase money security interests for equipment. The indebtedness evidenced by this Note shall be senior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject full to the terms prior payment in full of this Section 3, have the right to pay all or any part indebtedness for borrowed money of the unpaid principal amount of this Note without premium or penalty at any time; provided, Company that interest shall be paid on the amount repaid to and including the date of repaymentis not Senior Indebtedness. In the event of any dissolutioninsolvency or bankruptcy case or proceeding, winding upor any receivership, liquidation, readjustment, reorganization or other similar event case or proceeding in connection therewith, relating to Borrower, whether voluntary the Company or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditorsto its assets, or any other marshaling liquidation, dissolution or winding-up of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”)Company, the holders of Senior Interest shall first be paid and performed in full and in cash before the Lender Indebtedness shall be entitled to receive and payment in full in cash or cash equivalents of all Senior Indebtedness, or provision shall be made for such payment in full, before the Holder of this Note shall be entitled to retain receive any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower (other than any payment or from distribution in the form of equity securities or subordinated securities) on account of principal of, or premium, if any, or any other source whatsoeverpayment obligations on this Note; and any payment or distribution of assets of the Company of any kind or character, whether in respect cash, property or securities (other than any payment or distribution in the form of equity securities or subordinated securities), by set-off or otherwise, to which the Holder of this Note, other than as expressly permitted Note would be entitled but for the provisions of this Section 5.2 shall be paid by the terms of this Note, liquidating trustee or agent or other person making such payment or other distribution shall be received for distribution, whether a trustee in bankruptcy or receiver or liquidating trustee or otherwise, directly to the sole benefit holders of Senior Indebtedness or their representative or representatives ratably accordingly to the aggregate amount remaining unpaid on account of the Senior Interest Holders and shall be turned over by the Lender Indebtedness to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated extent necessary to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon make payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)all Senior Indebtedness remaining unpaid, the Lender shall be subrogated after giving effect to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-concurrent payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from distribution to the holder of this Note to all Persons who become the holders of, or who continue to hold, such Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Indebtedness.
Appears in 2 contracts
Sources: Convertible Note Purchase Agreement (Ceres, Inc.), Convertible Note Purchase Agreement (Ceres, Inc.)
Subordination. Capitalized terms used in this Section but not otherwise defined in this Agreement or in this Section shall have the meanings ascribed to them in the Credit Agreement.
(a) All payment obligations of the Borrower andhereunder (whether for principal, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note interest or otherwise) (the “Subordinated Obligations”) are and shall remain subordinate be expressly subordinated and junior subject in right of payment to the prior indefeasible repayment in full of all Aggregate Unpaids the obligations of the Borrower now or hereafter existing under the Credit Agreement (as defined in the Receivables Purchase Agreement hereinafter described“Senior Obligations”) owed (which, no need herein, shall include without limitation the obligations to Wachovia Bankpay principal and interest, National Associationon such Senior Obligations, as and all commissions, fees, indemnities, prepayment premiums and other amounts payable to the Administrative Agent or any lenders or sureties (together with its successors in such capacitylenders or sureties, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest HoldersLenders”), pursuant agents or trustees under any Loan Documents with respect to such Senior Obligations, and post-petition interest and post-petition attorneys’ fees and costs, whether or not allowable is bankruptcy, in each case to the extent such items constitute Senior Obligations).
(b) The Borrower and the Lender hereby agree that certain Receivables Purchase Agreement dated as no payment or prepayment shall be made by or on behalf of December 21the Borrower for or on account of any Subordinated Obligations, 2009 by and among the Lender shall not ask, demand, [ILLEGIBLE], take or receive from the Borrower, the Purchasers and the Administrative Agentdirectly or indirectly, BorgWarner Inc. as collection agent (as amendedin cash, restated other property, or otherwise modified any rights or by set-off or in any other manner, including without limitation, from time to timeor by way of collateral, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms payment of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; providedSubordinated Obligations, that interest unless and until the Senior Obligations shall be paid on the amount have been indefeasibly repaid to and including the date of repayment. in full in cash.
(c) In the event of (i) any dissolutioninsolvency or bankruptcy case or proceeding in connection therewith, winding uprelative to the Borrower or to its creditors as such, or to its assets, or (ii) any liquidation, readjustment, reorganization dissolution or other similar event relating to winding up of the Borrower, whether partial or complete and whether voluntary or involuntary, partial or complete, involuntary and whether in bankruptcy, or not involving insolvency or receivership proceedings, bankruptcy or upon an (iii) any assignment for the benefit of creditors, creditors or any other marshaling marshalling of the assets and liabilities of Borrower or the Borrower, then and in any sale such event the Senior Lenders shall be entitled to receive payment in full of all amounts due or substantially to become due on or in respect of all of Senior Obligations or under the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash Credit Agreement before the Lender shall be entitled to receive any payment or account of the Loan (whether in respect of principal, interest premium, fees, indemnities, commissions or otherwise) and to retain that end, any payment or distribution of any kind or character, whether in cash, property or securities which may be payable or deliverable in respect of the Loan in any such case, proceeding, dissolution, liquidation or other winding up or event shall instead be paid or delivered to this Notethe Senior Lenders for application to the Senior Obligations, whether or not due, until the Senior Obligations shall have first been fully paid and satisfied in cash.
(d) If any event of default (or event or condition that with the giving of notice or passage of time or both would constitute an event of default) shall have occurred and be continuing under the Credit Agreement, then no payment shall be made by the Borrower on or in respect of the Loan, unless and until such event of default, event or condition shall have been remedied or waived.
(e) In the event that the Lender receives on account or in respect of the Loan or otherwise after the occurrence and during the continuance of an event of default under the Credit Agreement any distribution of assets by the Borrower or payment by or on behalf of the Borrower of any kind or character, whether in cash, securities or other property, such receipts shall be received in trust for the benefit of the Senior Lenders, shall be segregated from other funds and property held by the Lender and shall be forthwith paid over to the Administrative Agent under the Credit Agreement for the account of the Senior Lenders in the same form as no received (with any necessary endorsement or assignment) to be applied (in the case of cash) to, or held as collateral (in the case of non-cash property or securities) for, the repayment or prepayment of the Senior Obligations. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name event of failure of the Lender to make any such endorsement or otherwiseassignment, may the Senior Lenders irrevocably are authorized and empowered by and on behalf of the Lender to make the same.
(f) The Lender (i) irrevocably authorizes and empowers (without imposing any obligation on) Senior Lenders (or their agents, attorneys or trustees) to demand, ▇▇▇ for, collect, receive and receipt for all payments and distributions on or to respect of its Subordinated Obligations which are required to be paid or delivered to the Senior Lenders, as provided herein, and to file and prove all claims therefore and take all such other action, in the name of the Lender or otherwise, as Senior Lenders may determine to be necessary or appropriate for the enforcement of the subordination terms contained in this Agreement, (ii) irrevocably authorizes and empowers (without [ILLEGIBLE] any obligation) Senior Lenders (or their agents, attorneys or trustees) to vote the Subordinated Obligations (including, without limitation, voting the Subordinated Obligations in favor of or in opposition to any matter which may come before any meeting of creditors of the Borrower generally or in connection with, or in anticipation of, any insolvency or bankruptcy case or proceeding, or any proceeding under my laws relating to the relief of debtors, readjustment of Indebtedness, arrangements, reorganizations, compositions or extensions relative to the Borrower) and (iii) agrees to execute and deliver to Senior Lenders all such further instruments confirming the above authorization, and all such payments or distributionspowers of attorney, proofs of claim, assignments of claim and other instruments, and fileto take all such other action, prove and vote or consent as may be requested by Senior Lenders in any such Bankruptcy Proceedings with respect order to any and enable Senior Lenders to enforce all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment upon or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Notethe Subordinated Obligations.
(g) The Lender agrees, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the each Senior Interest Holders) forthwith. Notwithstanding Lender, that they will give each Senior Lender prompt notice of any payments or distributions received default by the Senior Interest Holders Borrower in respect of this Notethe Subordinated Obligations.
(h) Until the repayment in full of the Senior Obligations, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights transfer, sell, assign, pledge, encumber or otherwise dispose of any of the Senior Interest Holders in respect Subordinated Obligations, unless such transfer, sale, assignment, pledge, encumbrance or disposition is made with the prior written comment of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments Administrative Agent under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that Credit Agreement.
(i) No failure on the Lender part of Senior Lenders and no delay in exercising, any right, remedy or power hereunder shall notoperate as a waiver thereof by Senior Lenders, until the nor shall any single or partial exercise of any right, remedy or power hereunder, preclude any other or future exercise of Senior Interest has been paid Lenders of any other right, remedy or power. Each and performed in full every right, remedy and in cash, transfer, pledge or assignpower granted to Senior Lenders, or commence legal proceedings allowed Senior Lenders by law or other agreement shall be cumulative and not exclusive, and may be exercised by Senior Lenders, from time to enforce or collect this Note or time.
(j) Without in any rights in respect hereof; (ii) way limiting the Lender shall not, without the advance written consent generality of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) ifforegoing paragraph, at any time, any payment (in whole without the consent of or in part) of any Senior Interest is rescinded notice to the Lender, without incurring responsibility or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue liability to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of and without impairing or releasing the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent subordination provided herein or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights hereunder of the Lender, on the one hand, and the Senior Interest Holders on Lenders may do any one or more of the other hand. Nothing contained following: (i) change the manner, place or terms of payment of or extended the time of payment of, or renew or alter, Senior Obligations or any collateral security or guaranty therefor, or otherwise amend or supplement in this Note is intended to any manner Senior Obligations or shall impairany instruments evidencing the same or any agreement under which Senior Obligations are outstanding: (ii) soil, as between Borrowerexchange, its creditors release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Obligations; (other than iii) release any Person liable in any manner for the Senior Interest HoldersObligations; and (iv) exercise or refrain from exercising any rights against the Borrower and any other Person. The Lender unconditionally waives notice of the incurring of Senior Obligations or any part thereof.
(k) The Lender, Borrower’s obligationat its own cost, which is unconditional shall take any further action as the Senior Lenders may reasonably request in order to carry out more fully the intent and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights purpose of the Lender and creditors of Borrower (other than the Senior Interest Holders)Subordination Terms.
Appears in 2 contracts
Sources: Convertible and Subordinated Loan Agreement, Convertible and Subordinated Loan Agreement (Ternium S.A.)
Subordination. Borrower andUpon payment by any Grantor of any Guaranteed Obligations, all rights of such Grantor against any other Grantor arising as a result thereof by its acceptance way of this Noteright of subrogation, Lender hereby acknowledge and agree that any and contribution, reimbursement, indemnity or otherwise shall in all payments made in respect of this Note are and shall remain respects be subordinate and junior in right of payment to all Aggregate Unpaids (as defined the prior payment in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors full in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as cash of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower Guaranteed Obligations (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt other than (i) contingent indemnification obligations for any and all such payments or distributionswhich a claim has not been asserted, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims (ii) Letters of the Lender relating to this Note, in each case until the Senior Interests shall Credit that have been paid Cash Collateralized or for which back-to-back letters of credit from an issuer acceptable to the L/C Issuer and performed in full and in cash. In on terms acceptable to the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, L/C Issuer have been provided in respect of this Notesuch Letters of Credit) and the termination of the Commitments. If any amount shall erroneously be paid to any Grantor on account of such subrogation, other than as expressly permitted by the terms of this Notecontribution, reimbursement, indemnity or similar right, such payment or other distribution amount shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (held in trust for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender Credit Parties and shall not forthwith be subrogated paid to the then existing rights Agent to be credited against the payment of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)Obligations, the Lender shall be subrogated to the then existing rights of the Senior Interest Holderswhether matured or unmatured, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof of this Agreement and the other Loan Documents. Subject to the foregoing, to the extent that any Borrower shall, under the Credit Agreement, this Agreement or any other Loan Document, as a joint and several obligor, repay any of the Obligations constituting Loans made to affect another Borrower under the Credit Agreement, this Agreement or any other Loan Document or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then relative the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101 (32) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. Anything herein or in any other Loan Document to the contrary notwithstanding, in any action or proceeding under any Debtor Relief Law or other Law affecting the rights of creditors generally, if the Lender Obligations of each Grantor would be held or determined to be void, voidable, invalid or unenforceable, then notwithstanding any other provision to the contrary in this Agreement or any other Loan Document, the amount of such liability, without any further action by such Grantor or any other Person, be automatically limited and creditors of Borrower (other than reduced to the Senior Interest Holders)highest amount that is valid and enforceable as determined in such action or proceeding.
Appears in 2 contracts
Sources: Guaranty and Security Agreement, Guaranty and Security Agreement (Sears Hometown & Outlet Stores, Inc.)
Subordination. Except as otherwise provided in this Section 14.8, any indebtedness of any Borrower now or hereafter owing to any other Borrower is hereby subordinated to the Obligations, whether heretofore, now or hereafter created, and whether before or after notice of termination hereof, and, by its acceptance following the occurrence and during the continuation of this Notean Event of Default, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). no Borrower shall, subject without the prior consent of Required Lenders, pay in whole or in part any of such indebtedness nor will any such Borrower accept any payment of or on account of any such indebtedness at any time while such Borrower remains liable hereunder. At the request of Administrative and Collateral Agent, after the occurrence and during the continuance of an Event of Default, each Borrower shall pay to the terms of this Section 3, have the right to pay Administrative and Collateral Agent all or any part of such subordinated indebtedness and any amount so paid to Administrative and Collateral Agent at its request shall be applied to payment of the unpaid principal amount Obligations. Each payment on the indebtedness of this Note without premium or penalty at any time; provided, that interest Borrower to the other Borrowers received in violation of any of the provisions hereof shall be deemed to have been received by any other Borrower as trustee for Administrative and Collateral Agent and Lenders and shall be paid over to Administrative and Collateral Agent immediately on account of the amount repaid Obligations, but without otherwise affecting in any manner any such Borrower’s liability under any of the provisions of this Agreement. Each Borrower agrees to and including file all claims against the date other Borrowers in any bankruptcy or other proceeding in which the filing of repayment. In the event claims is required by law in respect of any dissolution, winding up, liquidation, readjustment, reorganization or indebtedness of the other similar event relating Borrowers to such Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets Administrative and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid Collateral Agent and performed in full and in cash before the Lender Lenders shall be entitled to receive all of any such Borrower’s rights thereunder. If for any reason any such Borrower fails to file such claim at least thirty (30) days prior to the last date on which such claim should be filed, Administrative and Collateral Agent, as such Borrower’s attorney-in-fact, is hereby authorized to retain any payment or distribution do so in respect to this Note. In order to implement the foregoingBorrowers’ name or, in accepting this NoteAdministrative and Collateral Agent’s discretion, the Lender hereby irrevocably agrees that the Administrative Agentto assign such claim to, and cause a proof of claim to be filed in the name of the Lender of, Administrative and Collateral Agent’s nominee. In all such cases, whether in administration, bankruptcy or otherwise, may demandthe person or persons authorized to pay such claim shall pay to Administrative and Collateral Agent the full amount payable on the claim in the proceeding, ▇▇▇ forand to the full extent necessary for that purpose any such Borrower hereby assigns to Administrative and Collateral Agent, collectfor itself and the ratable benefit of Lenders, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect Borrower’s rights to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by to which such Borrower otherwise would be entitled. If the Senior Interest Holders in respect of this Noteamount so paid is greater than any such Borrower’s liability hereunder, while any Bankruptcy Proceedings are pending Administrative and Collateral Agent will pay the Lender shall not be subrogated excess amount to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)person entitled thereto.
Appears in 2 contracts
Sources: Loan and Security Agreement (BlueLinx Holdings Inc.), Loan and Security Agreement (BlueLinx Holdings Inc.)
Subordination. Borrower and, by its acceptance of this Note, Lender The Base Indenture is hereby acknowledge amended and agree that any and all payments made in supplemented with respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Notes as follows:
(a) Section 313.02(a) is amended in its entirety as follows: “Upon (i) any insolvency, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; providedbankruptcy, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding upreceivership, liquidation, reorganization, readjustment, reorganization composition or other similar event proceeding relating to Borrowerthe Company, whether its creditors or its property; (ii) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, partial whether or complete, and whether in bankruptcy, not involving insolvency or receivership bankruptcy proceedings, or upon an ; (iii) any assignment by the Company for the benefit of creditors, ; or (iv) any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all marshalling of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”)the Company, the all principal, premium, if any, and interest, if any, due upon all Senior Interest Indebtedness shall first be paid in full, or payment thereof provided for in money or money’s worth in accordance with its terms, before any payment is made on account of the principal of, premium, if any, or interest on the indebtedness evidenced by the Notes, and performed in full and in cash before the Lender shall be entitled to receive and to retain upon any such dissolution or winding-up or liquidation or reorganization any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of assets of the Lender Company of any kind or otherwisecharacter, may demandwhether in cash, ▇▇▇ forproperty or securities, collectto which the Holders of the Notes would be entitled, receive except for the provisions hereof, shall (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred by the provisions hereof upon the Senior Indebtedness and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings the Holders thereof with respect to the Notes and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law), be paid by the Company or any and all claims receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, or by the Holders of the Lender relating securities if received by them, directly to this Notethe Holders of Senior Indebtedness (pro rata to each such Holder on the basis of the respective amounts of Senior Indebtedness held by such Holder) or their representatives, in each case until to the extent necessary to pay all Senior Interests shall have been paid and performed Indebtedness (including interest thereon) in full in money or money’s worth in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the Holders of Senior Indebtedness, before any payment or distribution is made to the Holders of the indebtedness evidenced by the Notes. The consolidation of the Company with, or a merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another Person upon the terms and conditions provided in cash. Section 10.01 hereof shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this Section 13.02(a).”
(b) Section 13.02(b) is amended in its entirety as follows: “In the event that the Lender receives any payment or other distribution of assets of the Company of any kind or character from Borrower not permitted by Section 13.02(a), whether in cash, property or from other source whatsoeversecurities, shall be received by the Trustee or the Holders of Notes before all Senior Indebtedness is paid in full, or provision made for such payment, in respect accordance with its terms, at a time when a responsible officer of this Note, other than as expressly permitted by the terms of this NoteTrustee or such Holder has actual knowledge that such payment should not have been made to it, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (held in trust for the benefit of, and, upon written request, shall be paid over or delivered to, the Holders of such Senior Indebtedness or their representative or representatives, or to the Trustee or trustees under any indenture pursuant to which any instruments evidencing any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all such Senior Indebtedness in full in accordance with its terms, after giving effect to any concurrent payment or distribution to the Holders of such Senior Indebtedness.”
(c) The second sentence of Section 13.02(c) is amended in its entirety as follows: “No direct or indirect payment, in cash, property or securities, by set-off or otherwise, may be made or agreed to be made on account of the Senior Interest Holders) forthwith. Notwithstanding any payments Notes or distributions received by the Senior Interest Holders interest thereon, or in respect of this Noteany repayment, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights redemption, retirement, purchase or other acquisition of the Senior Interest Holders in respect Notes, if, at the time of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon such payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)or immediately after giving effect thereto, the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall notCompany defaults in the payment of any principal of (or premium, until if any) or interest on any Senior Indebtedness when the Senior Interest has been paid same becomes due and performed in full and in cashpayable, transfer, pledge whether at maturity or assign, at a date fixed for prepayment or commence legal proceedings to enforce declaration or collect this Note otherwise or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent an event of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings default occurs with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue Indebtedness permitting the Holders thereof to be effective or shall be reinstated, as accelerate the case may be, as though such payment had not been made; (iv) the Lender waives: (x) maturity thereof and written notice of acceptance such event of these provisions default (requesting that payments on the Notes cease) is given to the Company by any the Holders of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior InterestsIndebtedness, and these provisions are made for the benefit such event of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there default shall not have elapsed one year and one day since been cured or waived or shall not have ceased to exist.”
(d) Section 13.03 is supplemented by adding the Final Payout Date has occurred; and (vii) following paragraph following the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any last paragraph: “In matters between Holders of the assets Notes and any other type of Borrower, including, without limitationthe Company’s creditors, any Receivables or Related Security. The provisions set forth in this Section 3 payments that would otherwise be paid to Holders of Senior Indebtedness and that are intended solely for the purpose of defining the relative rights made to Holders of the Lender, Notes because of such subrogation will be deemed a payment by the Company on the one hand, account of Senior Indebtedness and the Senior Interest Holders not on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights account of the Lender and creditors of Borrower (other than the Senior Interest Holders)Notes.”
Appears in 2 contracts
Sources: Third Supplemental Indenture (American Express Co), Second Supplemental Indenture (American Express Co)
Subordination. Borrower and, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in With respect to this Note. In order any Liens on ABL Priority Collateral securing the Secured Obligations, such Liens cease to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings have senior “first priority” status pursuant to an ABL Intercreditor Agreement with respect to Liens on such ABL Priority Collateral securing Indebtedness outstanding under any and all claims of the Lender relating to this NoteFirst Lien Facility or any Junior Lien Indebtedness, in each case until the Senior Interests shall have been paid and performed with an aggregate principal amount outstanding in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit excess of the Senior Interest Holders Threshold Amount and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at provisions in any time, ABL Intercreditor Agreement subordinating the Liens on the Collateral securing Indebtedness outstanding under any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all First Lien Facility or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against BorrowerJunior Lien Indebtedness, in each case so long as there shall not have elapsed one year with an aggregate principal amount outstanding in excess of the Threshold Amount, to the Liens on the Collateral securing the Secured Obligations, (A) any Loan Party contests in writing the validity or enforceability thereof, (B) any court of competent jurisdiction in a final non-appealable order, determines such subordination provisions to be invalid or unenforceable, or (C) such subordination provisions otherwise cease to be valid, binding and one day since enforceable obligations of the Final Payout Date has occurredparties to such ABL Intercreditor Agreement; then, and in every such event (viiother than an event with respect to the Borrowers described in clause (f) or (g) of this Article) and at any time thereafter during the Lender expressly recognizes continuance of such event, the Administrative Agent may, and agrees that at the obligations represented request of the Required Lenders shall, by this Note are not secured by any interest in notice to the Lead Borrower, take any of the assets of Borrowerfollowing actions, including, without limitation, at the same or different times: (i) terminate the Commitments or any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one handAdditional Revolving Commitments, and thereupon such Commitments and/or Additional Revolving Commitments shall terminate immediately, (ii) declare the Senior Interest Holders on the other hand. Nothing contained Revolving Loans then outstanding to be due and payable in this Note is intended whole (or in part, in which case any principal not so declared to or shall impairbe due and payable may thereafter be declared to be due and payable), as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender thereupon the principal of the Revolving Loans so declared to be due and payable, together with accrued interest on this Note as thereon and when all fees and other obligations of the same Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower and (iii) require that the US Borrower deposits in accordance with the terms hereof or US LC Collateral Account and the Canadian Borrower deposits in the Canadian LC Collateral Account, an additional amount in Cash as reasonably requested by the Issuing Banks (not to affect then relative rights exceed 101% of the Lender relevant face amount) of the then outstanding US LC Exposure (minus the amount then on deposit in the US LC Collateral Account) or Canadian LC Exposure (minus the amount then on deposit in the Canadian LC Collateral Account), as applicable; provided that upon the occurrence of an event with respect to any Borrower described in clause (f) or (g) of this Article, any such Commitments and/or Additional Revolving Commitments applicable to the US Borrower and creditors to the extent such event is applicable to the Canadian Borrower, the Canadian Borrower shall automatically terminate and the principal of Borrower (the Revolving Loans then outstanding, together with accrued interest thereon and all fees and other than obligations of the Senior Interest Holders)Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC or the PPSA.
Appears in 2 contracts
Sources: Abl Credit Agreement (Hayward Holdings, Inc.), Abl Credit Agreement (Hayward Holdings, Inc.)
Subordination. Borrower andAnything in this Agreement to the contrary notwithstanding, by its acceptance any amount hereunder that the Companies are not permitted to pay on a current cash basis to Ardshiel pursuant to the terms of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and the Credit Agreement (the "Accruing Portion") shall remain subordinate and junior in right of payment accrue hereunder on a subordinated basis to all Aggregate Unpaids Obligations (as defined in the Receivables Purchase Agreement hereinafter describedCredit Agreement) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of BorrowerCredit Agreement, including, without limitation, under Atrium's guarantee of the Obligations under the Credit Agreement, (such Obligations and other indebtedness and obligations in connection with any Receivables renewal, refunding, restructuring or Related Securityrefinancing thereof, including interest thereon accruing after the commencement of any proceedings referred to in clause (i) below, whether or not such interest is an allowed claim in such proceeding, being hereinafter collectively referred to as "SENIOR INDEBTEDNESS"). The provisions set forth in this Section 3 are intended solely for payment of such subordinated amounts shall be subject to the purpose following provisions:
(a) In the event of defining the relative rights of the Lender, on the one handany insolvency or bankruptcy proceedings, and the Senior Interest Holders on the any receivership, liquidation, reorganization or other hand. Nothing contained similar proceedings in this Note is intended connection therewith, relative to it or shall impairto its creditors, as between Borrowersuch, or to its creditors property, and in the event of any proceedings for voluntary liquidation, dissolution or other windings up of ACI or Atrium, whether or not involving insolvency or bankruptcy, then (x) the holders of Senior Indebtedness shall be paid in full in cash in respect of all amounts constituting Senior Indebtedness before Ardshiel is entitled to receive (whether directly or indirectly), or make any demands for, the Accruing Portion and (y) until the holders of Senior Indebtedness are paid in full in cash in respect of all amounts constituting Senior Indebtedness, any Accruing Portion to which Ardshiel would otherwise be entitled (other than debt securities of Atrium and ACI that are subordinated, to at lease the same extent as payments under this Agreement, to the payment of all Senior Interest HoldersIndebtedness then outstanding (such securities being hereinafter referred to as "RESTRUCTURED DEBT SECURITIES")) shall be made to the holders of Senior Indebtedness.
(b) If any payment or distribution of any character, whether in cash, securities or other property (other than Restructured Debt Securities), under this Agreement shall (despite these subordination provisions) be received by Ardshiel in violation of clause (i) before all Senior Indebtedness shall have been paid in full in cash, such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness (or their representatives), ratably according to the respective aggregate amounts remaining unpaid thereon, to the extent necessary to pay all Senior Indebtedness in full in cash. To the full extent permitted by law, no present or future holder or Senior Indebtedness shall be prejudiced in its right to enforce the subordination provisions of this Agreement by any act or failure to act on the part of Atrium or ACI or by any act or failure to act on the part of such holder or any trustee or agent for such holder. Ardshiel, Atrium and ACI hereby agree that the foregoing subordination provisions of this Agreement are for the benefit of the Creditors (as such term is defined in the Credit Agreement) and the LenderAdministrative Agent (as defined in the Credit Agreement) may, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights behalf of the Lender and creditors of Borrower (other than Creditors, proceed to enforce the Senior Interest Holders)subordination provisions herein.
Appears in 2 contracts
Sources: Management Agreement (Best Built Inc), Management Agreement (Atrium Companies Inc)
Subordination. Borrower andAnything in this Note to the contrary notwithstanding, by its acceptance the obligation of the Company to pay the principal of and interest on, this Note, Lender hereby acknowledge and agree that any and to discharge all payments made in respect of this Note are and its other obligations hereunder, shall remain be subordinate and junior in right of payment to all Aggregate Unpaids (as defined the extent set forth in the Receivables Purchase Agreement hereinafter describedfollowing paragraphs (A), (B) owed and (C), inclusive, to Wachovia Bank(i) all obligations of the Company to banks or other financial institutions for borrowed money, National Associationand (ii) all obligations of the Company to banks or other financial institutions under guarantees by the Company of obligations of wholly owned subsidiaries of the Company to banks or other financial institutions for borrowed money, in each case, whether such obligations are outstanding at the date of this Note or created or incurred after the date of this Note but prior to the maturity of this Note. The obligations of the Company to which this Note is subordinate and junior in right of payment are sometimes herein referred to as Administrative Agent "Senior Indebtedness".
(together with A) In the event of any insolvency, bankruptcy, liquidation, reorganization or other similar proceedings, or any receivership proceedings in connection therewith, relative to the Company or its successors creditors or its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy proceedings, then all Senior Indebtedness shall first be paid in full, before any payment on account of principal or interest is made upon this Note.
(B) In any of the proceedings referred to in paragraph (A) above, any payment or distribution of any kind or character, whether in cash, property, stock or obligations which may be payable or deliverable in respect of this Note shall be paid or delivered directly to the holders of Senior Indebtedness for application in payment thereof, unless and until all Senior Indebtedness shall have been paid in full.
(C) In the event the Company shall default under any Senior Indebtedness obligation held by any bank or other financial institution, which default shall continue without cure or waiver, and the effect of such capacitydefault is to accelerate the maturity of such obligation or the holder thereof shall cause such obligation to become due prior to the stated maturity thereof or the Company shall not pay such obligation at maturity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” Company will not make, directly or “Senior Interest Holders”)indirectly, pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms holder of this Section 3, have the right to pay Note any payment of any kind of or on account of all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note will not accept from the Company any payment of any kind of or on account of all or any part of this Note, unless and until all such Senior Indebtedness shall have been paid in full; and if, with respect to any such default, the holder of such Senior Indebtedness obligation shall have made a demand for payment and commenced an action, suit or other proceeding against the Company, then the holder of this Note may not take, demand, receive, sue for, accelerate or commence any remedial proceedings with respect to any amount payable under this Note during the pendency of such action, suit or other proceeding. Notwithstanding the provisions of the immediately preceding sentence, if any such default shall have continued for 180 days or more, the Company may make and the holder of this Note may accept from the Company all Persons who become the holders of, past due and current payments of any kind of or who continue to hold, Senior Interestson account of this Note, and these provisions are made such holder may demand, receive, retain, sue for the benefit or otherwise seek enforcement or collection of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions all amounts payable on behalf account of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and or interest on this Note. Upon request of any holder of Senior Indebtedness, the holder of this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)will affirm its obligations under this Section 16.
Appears in 2 contracts
Sources: Subordinated Note (Alliance Data Systems Corp), Subordinated Note (Alliance Data Systems Corp)
Subordination. Borrower and(a) Each Intercompany Lender hereby agrees that all its right, title and interest in, to and under any Intercompany Indebtedness owed to it by its acceptance any Intercompany Debtor shall be subordinate, and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Obligations of such Intercompany Debtor until the payment in full in cash or immediately available funds of all Obligations of such Intercompany Debtor (such Obligations, including interest thereon (including interest accruing at the default rate specified in the Credit Agreement) accruing after the commencement of any proceedings referred to in paragraph (b) of this NoteSection, Lender hereby acknowledge whether or not such interest is an allowed or allowable claim in such proceeding, being hereinafter collectively referred to as “Senior Indebtedness”).
(a) In the event of any insolvency or bankruptcy proceedings, and agree that any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relating to any Intercompany Debtor or to its property, and all payments made in the event of any proceedings for voluntary liquidation, dissolution or other winding up of any Intercompany Debtor, whether or not involving insolvency or bankruptcy, then (i) the holders of Senior Indebtedness shall be paid in full in cash or immediately available funds in respect of this Note all amounts constituting Senior Indebtedness before any Intercompany Lender shall be entitled to receive (whether directly or indirectly), or make any demand for, any payment or distribution of any kind or character, whether in cash securities or other property (other than Restructured Debt Securities (as defined below)), and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, from such Intercompany Debtor on account of any Intercompany Indebtedness owed by such Intercompany Debtor to such Intercompany Lender (provided that the foregoing shall not impair the right of any such Intercompany Lender to file a proof of claim in any such proceeding in accordance with the terms hereof) and (ii) until the holders of Senior Indebtedness are and shall remain subordinate paid in full in cash or immediately available funds in respect of all amounts constituting Senior Indebtedness, any payment or distribution to which such Intercompany Lender would otherwise be entitled, whether in cash, property or securities (other than a payment of debt securities of such Intercompany Debtor that are subordinated and junior in right of payment to all Aggregate Unpaids the Senior Indebtedness to at least the same extent as the Intercompany Indebtedness described in this Agreement is subordinated and junior in right of payment to the Senior Indebtedness then outstanding (such securities being hereinafter referred to as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest HoldersRestructured Debt Securities”), pursuant that certain Receivables Purchase Agreement dated as ) shall instead be made to the holders of December 21, 2009 by Senior Indebtedness.
(b) If any Event of Default has occurred and among Borrower, the Purchasers is continuing and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject Agent has provided prior written notice to the terms of this Section 3, have the right to pay all Borrower requesting that no such payment or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedingsdistribution, or upon an assignment for the benefit of creditorsno such forgiveness or reduction, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower be made, then (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any i) no payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower character, whether in cash securities or from other source whatsoeverproperty (other than Restructured Debt Securities), and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, shall be made by or on behalf of any Intercompany Debtor with respect to any Intercompany Indebtedness owed to any Intercompany Lender and (ii) no Intercompany Indebtedness owing by any Intercompany Debtor to any Intercompany Lender shall be forgiven or otherwise reduced in respect of this Noteany way, other than as expressly permitted a result of payment of such amount in full in cash or immediately available funds.
(c) If any payment or distribution of any kind or character, whether in cash, securities or other property (other than Restructured Debt Securities), and whether directly, by the terms purchase, redemption, exercise of any right of setoff or otherwise, with respect to any Intercompany Indebtedness shall (despite these subordination provisions) be received by any Intercompany Lender from any Intercompany Debtor in violation of paragraph (b) or (c) of this NoteSection prior to all Senior Indebtedness having been paid in full in cash or immediately available funds (other than contingent obligations as to which no claim has been made), such payment or other distribution shall be received for the sole benefit held by such Intercompany Lender (segregated from other property of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (such Intercompany Lender) for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as paid over or delivered to the case may be, as though such payment had not been made; Administrative Agent promptly upon receipt to the extent necessary to pay all Senior Indebtedness in full in cash or immediately available funds.
(ivd) Each Intercompany Lender and each Intercompany Debtor hereby agrees that the Lender waives: (x) notice of acceptance of these subordination provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence set forth in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions Agreement are made for the benefit of the Senior Interest Holders, Administrative Agent and the other holders of Senior Indebtedness. The Administrative Agent or the Purchaser may may, on behalf of itself and such other holders of Senior Indebtedness, proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The these subordination provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)herein.
Appears in 2 contracts
Sources: Second Lien Credit and Guaranty Agreement (Fusion Connect, Inc.), First Lien Credit and Guaranty Agreement (Fusion Connect, Inc.)
Subordination. Borrower andNotwithstanding anything to the contrary contained in this Note, the Maker and the Payee agree that all indebtedness evidenced by this Note, including principal, interest and all other amounts payable hereunder (collectively, the “Subordinated Indebtedness”), shall be and remain junior and subordinate to any and all indebtedness, obligations and liabilities, including principal and interest, of the Maker to the Senior Lenders now existing or hereafter arising, whether direct or indirect, secured or unsecured, absolute or contingent, joint or several or joint and several, and howsoever owned, held or acquired, whether through discount, purchase, direct loan or as collateral or otherwise and all post-petition interest in a bankruptcy or similar proceeding whether or not allowed (collectively, the “Superior Indebtedness”), all on the following terms and conditions:
(a) So long as any Superior Indebtedness shall remain outstanding and unpaid or the Senior Lenders have any obligation to extend credit to the Maker, no payment either of principal or interest (notwithstanding the expressed maturity or any time for the payment of principal of or interest on any Subordinated Indebtedness) shall be made on the Subordinated Indebtedness prior to January 31, 2011, and thereafter, such payments shall only be permitted with the Administrative Agent’s prior written consent. The Payee will take no steps, whether by suit or otherwise, to compel or enforce the collection of Subordinated Indebtedness, nor will the Payee use Subordinated Indebtedness by way of counterclaim, set-off, recoupment or otherwise so as to diminish, discharge or otherwise satisfy in whole or in part any indebtedness or liability of the Payee to the Maker, whether now existing or hereafter arising and howsoever evidenced.
(b) In the event of any distribution, dividend, or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the assets of the Maker or of the proceeds thereof to the creditors of the Maker or upon any indebtedness of the Maker, occurring by reason of the liquidation, dissolution, or other winding up of the Maker, or by reason of any execution sale, or bankruptcy, receivership, reorganization, arrangement, insolvency, liquidation or foreclosure proceeding of or for the Maker or involving its acceptance property, no dividend, distribution or application shall be made, and the Payee shall not be entitled to receive or retain any dividend, distribution, or application on or in respect of principal of or interest on Subordinated Indebtedness, unless and until all principal of and interest on Superior Indebtedness then outstanding shall have been paid and satisfied in full, and in any such event any dividend, distribution or application otherwise payable in respect of Subordinated Indebtedness shall be paid and applied on Superior Indebtedness until such Superior Indebtedness has been fully paid and satisfied.
(c) No Senior Lender need at any time give the Payee notice of any kind of the creation or existence of any Superior Indebtedness, nor of the amount or terms thereof, all such notice being hereby expressly waived. Also, the Senior Lenders may at any time from time to time, without the consent of or notice to the Payee, without incurring responsibility to the Payee, and without impairing or releasing the obligation of the Payee under this Note (i) renew, refund or extend the maturity of, or increase or decrease the amount of, any Superior Indebtedness, or any part thereof, or otherwise revise, amend or alter the terms and conditions thereof, (ii) sell, exchange, release or otherwise deal with any property by whomsoever at any time pledged, mortgaged or otherwise hypothecated or subjected to a lien to secure any Superior Indebtedness, and (iii) exercise or refrain from exercising any rights against the Maker and others, including the Payee.
(d) The Payee will not sell, assign or otherwise transfer any Subordinated Indebtedness, or any part thereof, except subject to and in accordance with the terms of this Note and upon the agreement of the transferee or assignee to abide by and be bound by the terms of this Note, Lender hereby acknowledge .
(e) The Payee represents and agree warrants that the Payee has no lien on or security interest in any assets of the Maker and all payments made in respect of this Note are and will not accept any such lien or security interest so long as any Superior Indebtedness shall remain subordinate outstanding and junior unpaid or the Senior Lenders have any obligations to extend credit to the Maker. Notwithstanding the foregoing, the Payee expressly subordinates all of the Payee’s rights in right of payment any collateral now or later securing the Subordinated Indebtedness (the “Collateral”) to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia rights of Fifth Third Bank, National Association, as Administrative Agent (together with for the Senior Lenders, and any and all of its successors in such capacityand assigns (collectively, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated now or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or later existing in any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on same Collateral to secure the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or completeSuperior Indebtedness, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments every lien or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings security interest with respect to any and all claims the Collateral in favor of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (held for the benefit of the Administrative Agent has and shall have priority over every lien and security interest that the Payee now has or may hereafter acquire with respect to the Collateral, all notwithstanding any statement or provision contained in the instruments evidencing the Subordinated Indebtedness, or agreements with respect thereto or otherwise to the contrary and irrespective of the time or order of filing or recording of financing statements, deeds of trust, mortgages or other notices of security interests, liens or assignments granted pursuant thereto, and irrespective of anything contained in any filing or agreement to which any part hereto or its respective successors and assigns may now or hereafter be a party, and irrespective of the ordinary rules for determining priorities under the Uniform Commercial Code of the State of Ohio or under any other law governing the relative priorities of secured creditors. The Payee consents to the creation and continuance of all present and future liens and security interests of the Administrative Agent in the Collateral to secure the Superior Indebtedness and to the enforcement of those liens and security interests, including the removal of the Collateral from the real property of the Maker. This subordination as to the Collateral is intended to define the rights and duties of the Administrative Agent and the Payee; it is not intended that any third party shall benefit from it. If the effect of any provision of this Note would be to give any third party a priority status to which that party would not otherwise be entitled, that provision shall, to the extent necessary to avoid that priority, be given no effect and the rights and priorities of the Administrative Agent and the Payee shall be determined in accordance with applicable law.
(f) If notwithstanding the provisions of this Section 7, the Payee shall receive any payment of principal or interest on Subordinated Indebtedness which the Maker is not entitled to make pursuant to the terms hereof, whether or not the Payee has knowledge that the Maker is not entitled to make such payment, the Payee shall promptly account for such payment and upon the Administrative Agent’s demand pay over such payment to the Administrative Agent for application to the Superior Indebtedness owing to the Senior Interest Holders) forthwithLenders. Notwithstanding No payment or any payments or distributions distribution received by the Senior Interest Holders Administrative Agent in respect of this NoteSubordinated Indebtedness pursuant to any of the terms hereof shall entitle the Payee to any right, while whether by virtue of subrogation or otherwise, in and to any Bankruptcy Proceedings are pending the Lender shall not be subrogated Superior Indebtedness unless and until all Superior Indebtedness owing to the then existing rights of Senior Lenders has been fully paid and satisfied and the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest HoldersLenders obligations, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay extend credit to the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof Maker have expired or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)otherwise been terminated.
Appears in 2 contracts
Sources: Contribution Agreement and Cash Collateral Security Agreement (Champion Industries Inc), Subordinated Promissory Note (Champion Industries Inc)
Subordination. Borrower and(i) Subject as provided below, in the event of an order being made, or an effective resolution being passed, for the liquidation, dissolution or winding-up of the Issuer by its acceptance reason of this Notebankruptcy or otherwise (except, Lender hereby acknowledge in any such case, a solvent liquidation, dissolution or winding-up solely for the purposes of a reorganisation, reconstruction or amalgamation of the Issuer or the substitution in place of the Issuer of either a successor in business of the Issuer or CSG, the terms of which reorganisation, reconstruction, amalgamation or substitution (x) have previously been approved by an Extraordinary Resolution and agree (y) do not provide that any the Tier 1 BCNs shall thereby become redeemable or repayable in accordance with these Conditions), the rights and all payments made claims of the Holders against the Issuer in respect of this Note or arising under (including any damages awarded for breach of any obligation under) the Tier 1 BCNs shall, subject to any obligations which are mandatorily preferred by law, rank junior to the claims of all holders of unsubordinated obligations of the Issuer and all other subordinated obligations of the Issuer except subordinated obligations of the Issuer in respect of Tier 1 Instruments, at least pari passu with all subordinated obligations of the Issuer in respect of Tier 1 Instruments and senior to the claims of holders of all classes of share capital of the Issuer, provided that, if at any such time a Substitution Date has not occurred but an order has been made or an effective resolution has been passed for the liquidation or winding-up of CSG, any amount payable to Holders shall remain subordinate not exceed the amount per Tier 1 BCN that would be paid on a liquidation distribution out of the assets of CSG had the Tier 1 BCNs and junior in right of payment to all Aggregate Unpaids any other obligations ranking pari passu with the Tier 1 BCNs ranked pari passu with Guarantor Parity Obligations (as defined in the Receivables Purchase Agreement hereinafter describedGuarantee).
(ii) owed to Wachovia BankOn or after a Substitution Date, National Associationwhere CSG is the new Issuer, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedingsan order being made, or upon an assignment effective resolution being passed, for the benefit liquidation or winding-up of creditorsCSG:
(a) prior to the occurrence of a Contingency Event or a Viability Event, or any other marshaling the claims of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution Holders against CSG in respect of or arising under the Tier 1 BCNs shall rank (i) junior to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of CSG Priority Creditors, (ii) at least pari passu with CSG Parity Obligations and (iii) senior to the Lender relating to this Noterights and claims of all holders of CSG Share Capital;
(b) on and after the occurrence of a Contingency Event or a Viability Event, in each case until the Senior Interests shall have been paid rights and performed in full and in cash. In claims of Holders against CSG under the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, Tier 1 BCNs in respect of this Note, other than as expressly permitted by any Accrued Conversion Interest shall rank in the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holdersmanner described in Condition 3(b)(ii)(a) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereofabove; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders).or
Appears in 2 contracts
Sources: Capital Notes Agreement (Credit Suisse Group Ag), Credit Agreement (Credit Suisse Group Ag)
Subordination. Borrower and(a) Each Intercompany Lender hereby agrees that all its right, title and interest in, to and under any Intercompany Indebtedness owed by its acceptance any Intercompany Debtor shall be subordinate, and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Obligations of such Intercompany Debtor until the payment in full in cash of all Loan Document Obligations (other than contingent obligations for indemnification, expense reimbursement, tax gross up or yield protection as to which no claim has been made) of such Intercompany Debtor; provided that such Intercompany Debtor may make payments to the applicable Intercompany Lender unless and until an Event of Default shall have occurred and be continuing or would result therefrom (such Obligations, including interest thereon accruing after the commencement of any proceedings referred to in paragraph (b) of this NoteSection, Lender hereby acknowledge whether or not such interest is an allowed claim in such proceeding, being hereinafter collectively referred to as “Senior Indebtedness”).
(b) In the event of any insolvency or bankruptcy proceedings, and agree that any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relating to any Intercompany Debtor or to its property, and all payments made in the event of any proceedings for voluntary liquidation, dissolution or other winding up of such Intercompany Debtor, whether or not involving insolvency or bankruptcy, if an Event of Default has occurred and is continuing, (i) the holders of Senior Indebtedness shall be paid in full in cash in respect of this Note all amounts constituting Senior Indebtedness before any Intercompany Lender shall be entitled to receive (whether directly or indirectly), or make any demand for, any payment or distribution of any kind or character, whether in cash securities or other property (other than Restructured Debt Securities (as defined below)), and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, from such Intercompany Debtor on account of any Intercompany Indebtedness owed by such Intercompany Debtor to such Intercompany Lender (provided that the foregoing shall not impair the right of any Intercompany Lender to file a proof of claim in any such proceeding in accordance with the terms hereof) and (ii) until the holders of Senior Indebtedness are and shall remain subordinate paid in full in cash in respect of all amounts constituting Senior Indebtedness, any payment or distribution to which such Intercompany Lender would otherwise be entitled, whether in cash, property or securities (other than a payment of debt securities of such Intercompany Debtor that are subordinated and junior in right of payment to the Senior Indebtedness to at least the same extent as the Intercompany Indebtedness described in this Agreement is subordinated and junior in right of payment to the Senior Indebtedness then outstanding (such securities being hereinafter referred to as “Restructured Debt Securities”)) shall instead be made to the holders of Senior Indebtedness.
(c) If any Event of Default has occurred and is continuing, then (i) no payment or distribution of any kind or character, whether in cash, securities or other property (other than Restructured Debt Securities), and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, shall be made by or on behalf of any Intercompany Debtor, or any other Person on its behalf, with respect to any Intercompany Indebtedness and (ii) no Intercompany Indebtedness owing by any Intercompany Debtor to any Intercompany Lender that is a Loan Party shall be forgiven or otherwise reduced in any way, other than as a result of payment of such amount in full in cash.
(d) If any payment or distribution of any kind or character, whether in cash, securities or other property (other than Restructured Debt Securities), and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, with respect to any Intercompany Indebtedness shall (despite these subordination provisions) be received by any Intercompany Lender in violation of paragraph (b) or (c) of this Section prior to all Aggregate Unpaids Senior Indebtedness having been paid in full in cash, such payment or distribution shall be held by such Intercompany Lender in trust (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in segregated from other property of such capacity, the “Administrative Agent”Intercompany Lender) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as benefit of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated and shall be paid over or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject delivered to the terms of this Section 3, have Administrative Agent promptly upon receipt to the right extent necessary to pay all Senior Indebtedness in full in cash.
(e) Each Intercompany Lender agrees to file all claims against each relevant Intercompany Debtor in any bankruptcy or any part other proceeding in which the filing of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event claims is required by law in respect of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or completeIntercompany Indebtedness, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender Administrative Agent shall be entitled to receive and all of such Intercompany Lender’s rights thereunder. If for any reason an Intercompany Lender fails to retain any payment or distribution file such claim in respect of any Intercompany Indebtedness at least ten (10) Business Days prior to this Note. In order to implement the foregoinglast date on which such claim should be filed, in accepting this Note, the such Intercompany Lender hereby irrevocably agrees that appoints the Administrative Agent as its true and lawful attorney-in-fact and the Administrative Agent is hereby authorized to act as attorney-in-fact in such Intercompany Lender’s name to file such claim or, in the Administrative Agent’s discretion, to assign such claim to and cause proof of claim to be filed in the name of the Lender Administrative Agent or its nominee. In all such cases, whether in administration, bankruptcy or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all the Person or Persons authorized to pay such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests claim shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender pay to the Administrative Agent the full amount payable on the claim in the proceeding, and, to the full extent necessary for that purpose, each Intercompany Lender hereby assigns to the Administrative Agent all of such Intercompany Lender’s rights to any payments or distributions to which such Intercompany Lender otherwise would be entitled. If the amount so paid is greater than such Intercompany Lender’s liability hereunder, the Administrative Agent shall pay the excess amount to the party entitled thereto.
(f) Each Intercompany Lender and each Intercompany Debtor hereby agrees that the subordination provisions set forth in this Agreement are for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, Agent and the other holders of Senior Indebtedness. The Administrative Agent or the Purchaser may may, on behalf of itself and such other holders of Senior Indebtedness, proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The these subordination provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)herein.
Appears in 2 contracts
Sources: Credit Agreement (Chemours Co), Credit Agreement (Chemours Co)
Subordination. Borrower andThe indebtedness evidenced by this Security is subordinate to the prior payment when due of the principal of and interest on all Senior Indebtedness (as such term is defined below). Upon maturity of any Senior Indebtedness, by its acceptance of this Note, Lender hereby acknowledge and agree that payment in full must be made on such Senior Indebtedness before any and all payments payment is made on or in respect of this Note are and shall remain subordinate and junior Security. During the continuance of any default in right payment of principal of (or premium, if any) or interest or sinking fund on any Senior Indebtedness, or any other event of default with respect to Senior Indebtedness pursuant to which the holders thereof have accelerated the maturity thereof, no direct or indirect payment may be made or agreed to all Aggregate Unpaids (as defined be made by the Issuer on or in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms respect of this Section 3, have the right to pay all or Security. Upon any part distribution of assets of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of Issuer in any dissolution, winding up, liquidationliquidation or reorganization, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit payment of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as Security will be subordinated, to the extent and when in the same shall become due and payable manner set forth in accordance with the terms hereof Indenture, to the prior payment in full of all Senior Indebtedness. The Indenture does not limit the Issuer's ability to increase the amount of Senior Indebtedness or to incur any additional indebtedness in the future that may affect then relative the Issuer's ability to make payments under this Security. Except as described above, the obligation of the Issuer to make payment of principal or interest on this Security will not be affected. The Holder of this Security will be subrogated to the rights of the Lender and holders of the Senior Indebtedness to the extent of payments made on Senior Indebtedness out of the distributive share of the Security. By reason of such subordination, in the event of a distribution of assets upon insolvency, certain general creditors of Borrower (the Issuer may recover more, ratably, than Holders of the Securities. "Senior Indebtedness" means Indebtedness of the Issuer outstanding at any time, other than Indebtedness of the Senior Issuer to a Subsidiary for money borrowed or advanced from any such Subsidiary, except Indebtedness which by its terms is not superior in right of payment to the Securities. "Indebtedness" means (1) any debt of the Issuer (i) for borrowed money or (ii) evidenced by a note, debenture or similar instrument (including a purchase money obligation) given in connection with the acquisition of any property or assets, including securities; (2) any debt of others described in the preceding clause (1) which the Issuer has guaranteed or for which it is otherwise liable; and (3) any amendment, renewal, extension or refunding of any such debt. In any case where any Interest Holders)Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of the Indenture or of this Security) payment of principal and interest need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, provided that no interest shall accrue for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Issuer and the rights of the Holders of the Securities of each series to be affected under the Indenture at any time by the Issuer and the Trustee with the consent of the Holders of not less than 50% in principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in aggregate principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by the Issuer with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. The Securities of this series are issuable only in registered form without coupons in any denomination; provided, however, that the minimum denomination shall be $500. All terms used in this Security which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
Appears in 2 contracts
Sources: Subordinated Term Note (FNB Corp/Pa), Subordinated Note (FNB Corp/Pa)
Subordination. Borrower and, by its acceptance (a) Each Trustee on behalf of this Note, Lender itself and the other Subordinated Parties hereby acknowledge and agree agrees that any and all payments made in respect of this Note are and the Subordinated Obligations shall remain be subordinate and junior in right of payment to all Aggregate Unpaids the (as defined in the Receivables Purchase Agreement hereinafter describedi) owed to Wachovia Bank, National Association, as Administrative Agent Obligations of each Specified Subsidiary Guarantor (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers whether now existing or from time to time party thereto after the date hereof incurred, assumed, created or arising) and (the “Purchasers” ii) Permitted Guaranteed Bilateral Letter of Credit Facilities with a US Lender or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent an affiliate thereof (as amended, restated whether now existing or otherwise modified from time to timetime after the date hereof incurred, the “Receivables Purchase Agreement”assumed, created or arising). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date payment of repayment. In the event of any dissolutionprincipal, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower premium (such proceedings being herein collectively called “Bankruptcy Proceedings”if any), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent interest (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, interest accruing on or after the filing of any Receivables Insolvency Proceeding, whether or Related Security. The provisions set forth not a claim for post-filing interest is allowed or allowable in this Section 3 are intended solely for the purpose of defining the relative rights any such Insolvency Proceeding), fees, charges, expenses, indemnities, reimbursement obligations and all other amounts payable thereunder or in respect thereof, in each case whether or not any of the Lenderforegoing is allowed or allowable as a claim in any Insolvency Proceeding (collectively, the “Senior Obligations”). For purposes hereof, “Subordinated Obligations” means all obligations of the Specified Subsidiary Guarantors to the Subordinated Parties (whether now existing or from time to time after the date hereof incurred, assumed, created or arising) under each Indenture, including each Subsidiary Notes Guarantee, including, in each case to the extent constituting obligations thereunder, the payment of principal, premium (if any), interest (including, without limitation, interest accruing on or after the one handfiling of any Insolvency Proceeding pursuant to the terms of the Indenture, whether or not a claim for post-filing interest is allowed or allowable in any such Insolvency Proceeding), fees, charges, expenses, indemnities, reimbursement obligations and all other amounts payable thereunder or in respect thereof, in each case whether or not any of the foregoing is allowed or allowable as a claim in any Insolvency Proceeding. For purposes hereof, “Discharge of the Senior Interest Holders on Obligations” shall mean that the other hand. Nothing contained Senior Obligations have been indefeasibly paid in this Note is intended to or shall impair, as between Borrower, its creditors full in cash and all commitments of the Senior Parties under the Loan Documents have been terminated (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, any inchoate obligations for which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holdersno claim has been asserted).
Appears in 2 contracts
Sources: Indenture (Nabors Industries LTD), Indenture (Nabors Industries LTD)
Subordination. Borrower andThe Company covenants and agrees, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in respect each holder of this Note are by his acceptance hereof likewise covenants and shall remain subordinate agrees, that the payment of the principal and junior interest on this Note is subordinated, to the extent and in the manner hereinafter set forth, to the prior payment in full of all Senior Debt. The term "Senior Debt" means the principal of and premium, if any, and interest on the following, whether currently outstanding or hereafter created, (i) indebtedness of the Company for money borrowed (including purchase money obligations) evidenced by notes or other written obligations (other than this Note), (ii) indebtedness of the Company evidenced by notes (other than this Note), debentures, bonds or other securities issued under the provisions of an indenture, fiscal agency agreement or similar instrument, (iii) obligations of the Company as lessee under capitalized leases and leases of property made as part of any sale and leaseback transactions, (iv) indebtedness of others of any of the kinds described in the preceding clauses (i) through (iii) assumed or guaranteed by the Company and (v) renewals, extensions and refundings of, and indebtedness and obligations of a successor corporation issued in exchange for or in replacement of, indebtedness or obligations of the kinds described in the preceding clauses (i) through (iv). Notwithstanding the foregoing, Senior Debt will not include: (i) any particular indebtedness, obligation, renewal, extension or refunding if the instrument creating or evidencing the same or the assumption or guarantee thereof expressly provides that such indebtedness, obligation, renewal, extension or refunding is not superior in right of payment to all Aggregate Unpaids (as defined the Note. As used in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacitysecond preceding sentence, the “Administrative Agent”) term "purchase money obligations" shall mean indebtedness or obligations evidenced by a note, debenture, bond or other instrument (whether or not secured by any lien or other security interest but excluding indebtedness or obligations for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject which recourse is limited to the terms of this Section 3, have the right to pay property purchased) issued or assumed as all or any part of the unpaid principal amount consideration for the acquisition of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrowerproperty, whether voluntary or involuntaryby purchase, partial or completemerger, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender consolidation or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender but shall not be subrogated to include any trade accounts payable. These provisions set forth in this paragraph (a) and the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid following paragraphs (b), (c), (d), (e) and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (f) (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i"Subordination Provisions") the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the holders from time to time of Senior Interest HoldersDebt, and the Administrative Agent or the Purchaser such holders and/or each of them may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)provisions.
Appears in 1 contract
Subordination. Borrower and2.1.1 Except as provided in this Agreement, by its acceptance the rights of this Note, Lender hereby acknowledge and agree that any and all payments made the Junior Creditor in respect of this Note the Subordinated Indebtedness are and subordinated to the Senior Liabilities.
2.1.2 The Junior Creditor undertakes to the Secured Parties that it shall remain subordinate and junior not, except as the Agent has previously consented in right of writing:
(a) unless Clause 6 (Subordination on insolvency) applies, demand or receive payment or any distribution in respect, or on account of, any indebtedness owing to all Aggregate Unpaids it by the Borrower (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent“ Subordinated Indebtedness”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated apply any money or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part assets in discharge of the unpaid principal amount Subordinated Indebtedness;
(b) discharge any of this Note without premium the Subordinated Indebtedness by set off;
(c) permit to subsist or penalty at receive any time; provided, that interest shall be paid on Security for any of the amount repaid Subordinated Indebtedness;
(d) permit to and including the date of repayment. In the event of subsist or receive any dissolution, winding up, liquidation, readjustment, reorganization guarantee or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, assurance against loss in respect of this Noteany of the Subordinated Indebtedness;
(e) amend, vary, waive or release any term relating to the Subordinated Indebtedness or allow any of the foregoing to occur; or
(f) assign, factor or dispose of, or create or permit to subsist any Security over, any of the Subordinated Indebtedness or its proceeds or any interest in the Subordinated Indebtedness or its proceeds to, or in favour of, any person other than the Secured Parties.
2.1.3 The Borrower undertakes to the Secured Parties that it shall not, except as expressly permitted the Agent has previously consented in writing;
(a) make any payment which the Junior Creditor is prohibited from receiving by the terms of this Note, such payment Agreement; or
(b) take or other distribution shall be received for omit to take any action or step whereby the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance subordination of all or any of the Senior Interests; and (z) all diligence in enforcementJunior Liabilities as contemplated by this Agreement could reasonably be expected to be terminated, collection impaired or protection of, or realization uponadversely affected.
2.1.4 Notwithstanding anything else to the contrary herein, the Senior Interests, or Secured Parties agree that the Junior Creditor shall be entitled to at any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, time claim and these provisions are made for the benefit of the Senior Interest Holdersreceive, and the Administrative Agent or the Purchaser may proceed Borrower shall be entitled to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrowermake, in each case so long as there shall not have elapsed one year and one day since subject to compliance with the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees applicable order of priority, payment of any amount that the obligations represented by this Note are not secured by any interest in any Borrower is permitted to transfer to the Distribution Account pursuant to Schedule 8 (The Accounts) of the assets Facility Agreement and any amount that the Borrower is permitted to pay to the Junior Creditor pursuant to paragraphs 6.2 and 7.2 of Borrower, including, without limitation, any Receivables or Related Security. Schedule 8 (The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights Accounts) of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Facility Agreement.
Appears in 1 contract
Subordination. Borrower andThe principal amount of and the interest on this Note shall be fully subordinated and junior to the prior payment in full in cash of all Senior Debt (as hereinafter defined) of the Obligor, whether outstanding at the date of this Note or created or incurred by the Obligor after the date of this Note on the terms and conditions set forth below:
(a) Upon maturity of any Senior Debt by lapse of time, acceleration or otherwise, then all such mature Senior Debt shall first be paid in full in cash before any payment on account of principal or interest is made on this Note.
(b) In the event of any insolvency, bankruptcy, liquidation, reorganization or other similar proceedings, or any receivership proceedings in connection therewith, relative to the Obligor or its acceptance creditors or its property, or in the event of any proceedings for partial or total liquidation, dissolution or other winding up of the Obligor, whether or not involving insolvency or bankruptcy proceedings, then all Senior Debt shall first be paid in full before any payment on account of principal or interest is made upon this Note. In any of the proceedings referred to in the first sentence of this subparagraph (b)("INSOLVENCY PROCEEDINGS"), unless and until all Senior Debt shall have been paid in full, if any payment shall have been made, or any payment or distribution of any kind or character, whether in cash, property, stock or obligations, which may be payable or deliverable in respect of the principal amount of or interest on this Note shall be made, then such amounts shall be paid or delivered directly to the holders of Senior Debt (or to a banking institution selected by the court or person making the payment or delivery or designated by any holder of Senior Debt) for application in payment thereof, and the holders of Senior Debt shall entitled to enforce all claims of the Holder with respect to the principal and interest payable hereunder and to take generally any action in connection with such Insolvency Proceedings which the Holder hereof might otherwise take in respect of such Holder's claims hereunder.
(c) During the continuance of any default in the payment of any Senior Debt or any other default (whether or not matured) under any instrument or agreement evidencing Senior Debt, (i) the Obligor shall not make, and the Holder shall not accept, any payment of principal of or interest on, or purchase or acquire for value, this Note, Lender hereby acknowledge and agree that (ii) the Holder shall not commence any and all payments made in respect Insolvency Proceedings or take any other legal or other action of any kind to enforce any of its rights to payment hereunder.
(d) Any payment of principal or interest on this Note are made to or received by the Holder other than in compliance with this Section 9 shall be held in trust for the benefit of and paid over to the holders of Senior Debt.
(e) Until the Senior Debt shall remain subordinate and junior have been indefeasibly paid in right of payment to all Aggregate Unpaids (as defined full, in the Receivables Purchase Agreement hereinafter describedevent that, and during the continuance of any Event of Default described in Section 8(a) owed to Wachovia Bankhereof, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part portion of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid declared due and performed in full and in cash. In payable pursuant to the event that the Lender receives any payment or other distribution provisions of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this NoteSection 8 hereof, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender declarations shall not be subrogated effective until the earlier of (i) the date on which an Event of Default under Section 8(a)(iii) has occurred, or (ii) the date on which the maturity of any Senior Debt is accelerated.
(f) Subject to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon indefeasible payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)all Senior Debt, the Lender Holder shall be subrogated to the then existing rights of the holders of Senior Interest Holders, if any. In accepting this Note, Debt to receive payments or distributions of assets of the Lender agrees that (i) Obligor payable or distributable to the Lender shall notholders of Senior Debt, until the Senior Interest has been this Note and interest hereon shall be paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstatedand, as between the case may beObligor, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become its creditors other than the holders of, or who continue to hold, of Senior Interests, and these provisions are made for the benefit of the Senior Interest HoldersDebt, and the Administrative Agent Holder, no payments or the Purchaser may proceed distributions otherwise payable or deliverable in respect to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured but, by any interest in any virtue of the assets provisions hereof, paid or delivered to the holders of BorrowerSenior Debt shall be deemed to be a payment by the Obligor on account of Senior Debt and no payments or distributions paid to the Holder, includingby virtue of subrogation herein provided for, without limitation, any Receivables or Related Security. shall be deemed to be a payment by the Obligor on account of this Note.
(g) The provisions set forth in of this Section 3 9 are intended solely for the purpose of defining the relative rights of the Lender, holders of Senior Debt on the one hand, hand and the Senior Interest Holders Holder on the other hand. Nothing contained in this Note is intended to or shall impair, and as between Borrower, its creditors (other than the Senior Interest Holders) Obligor and the LenderHolder, Borrower’s obligationnothing herein shall impair the obligation of the Obligor, which is unconditional and absolute, to pay to the Lender Holder the principal hereof and any interest thereon in accordance with its terms (provided, however, that this provision is not intended to limit the restrictions on payments on this Note set forth in Section 9(c) hereof).
(h) As used herein, the term "SENIOR DEBT" shall mean the principal of and premium, if any, and interest (whether accrued prior to or after the commencement of any insolvency proceeding under any Bankruptcy Law and whether or not allowed in such proceeding) on, and other amounts owing with respect to, Indebtedness of the Company or its subsidiaries, whether outstanding on this Note as the date hereof or thereafter created, incurred, assumed or guaranteed, and, in each such case, all renewals, extensions and when the same shall become due refunding thereof, and payable any Indebtedness of a 137 successor corporation issued in accordance with exchange for or in replacement thereof, unless, in each case, by the terms hereof or to affect then relative rights of the Lender and creditors instrument creating or evidencing the Indebtedness it is provided that such Indebtedness is not superior in right of Borrower (other than the Senior Interest Holders)payment to this Junior Subordinated Promissory Note.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Element K Corp)
Subordination. (a) It is agreed by each Borrower andthat (i) any purchase rights or rights of first refusal in favor of any Borrower shall be subject and subordinate to the Security Instrument, by its acceptance of this Note, Lender hereby acknowledge and agree that (ii) waives any and all payments made in Borrower lien rights or security interests with respect to the Property and the interests of this Note are any other party to the Co-Tenancy Agreement and (iii) all indemnities and other rights and remedies of each Borrower shall remain be subject and subordinate to the Loan and junior the Security Instrument and each Borrower covenants and agrees not to assert, collect, ▇▇▇ upon or otherwise enforce such rights, remedies and indemnities while any portion of the Loan Debt is outstanding.
(b) Each Borrower agrees as follows with respect to any amounts owed to such Borrower by any other Borrower under the TIC Agreement or otherwise, and any interest thereon or claims or causes of action with respect thereto (collectively, “Subordinate Claims”):
(i) each Borrower hereby postpones and subordinates payment of and makes all the Subordinate Claims subject in right of satisfaction, payment and performance, to the full and absolute payment of the Debt;
(ii) each Borrower hereby covenants and agrees that payments under or with respect to any Subordinate Claims will be made only from excess cash flow from the Property, and only so long as no default exists under the Loan Documents;
(iii) each Borrower waives all Aggregate Unpaids rights to declare a default and pursue remedies with respect to the Subordinate Claims unless and until such time as the Debt shall have been paid in full and discharged by Lender;
(as defined in the Receivables Purchase Agreement hereinafter describediv) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) each Borrower covenants and agrees that it shall not petition for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). institute bankruptcy or insolvency proceedings against any other Borrower; and
(v) each Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, covenants and agrees that interest shall be paid on the amount repaid to and including the date of repayment. In in the event of any dissolutionbankruptcy, winding upinsolvency, liquidation, readjustmentarrangement, reorganization or other similar event receivership proceeding relating to any other Borrower, whether voluntary the following shall apply:
(A) each Borrower hereby assigns all his, her or involuntaryits voting rights, partial as creditor or completeotherwise, in connection with any such proceeding to the Lender;
(B) In any such proceeding, Borrower will duly and promptly take such action as Lender may request to (i) collect for the account of Lender the Subordinate Claims and to file appropriate claims or proofs of claim with respect thereto; and (ii) execute and deliver to Lender such powers of attorney, assignments or other instruments as Lender may request in order to enable it to enforce any and all claims with respect to the Subordinate Claims; and
(C) In any such proceeding Lender may, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender is hereby irrevocably agrees that the Administrative Agent, authorized and empowered (in its own name or in the name of the Lender or otherwise, may said Borrower) but shall have no obligation to: demand, ▇▇▇ for, collect, collect and receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any every payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid Subordinate Claims and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interestsgive acquittance therefor; and file claims and proofs of claims and take such other action (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables voting the Subordinate Claims and approving or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose objecting to a plan of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to reorganization) as Lender may deem necessary or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)advisable.
Appears in 1 contract
Sources: Loan Agreement (American Realty Capital Trust III, Inc.)
Subordination. Borrower andThe Notes are subordinated to Senior Debt, which is all Indebtedness and other Obligations specified below payable directly or indirectly by its acceptance Foamex or FCC, or any of this Notetheir respective Restricted Subsidiaries whether outstanding on the date of the Indenture or thereafter created, Lender hereby acknowledge and agree that incurred or assumed by Foamex or FCC or any of their respective Restricted Subsidiaries: (i) the principal of, interest on and all payments made other Obligations related to the Credit Facility (including without limitation all loans, letters of credit and other extensions of credit under the Credit Facility, and all expenses, fees, reimbursements, indemnities and other amounts owing pursuant to the Credit Facility); (ii) amounts payable in respect of this Note are any Hedging Obligations; (iii) all Indebtedness not prohibited by Section 4.9 of the Indenture that is not expressly pari passu with or subordinated to the Senior Subordinated Notes, and (iv) all permitted renewals, extensions, refundings or refinancings thereof. All Post-Petition Interest on Senior Debt shall remain constitute Senior Debt. Notwithstanding anything to the contrary in the foregoing, Senior Debt will not include (i) Indebtedness of either of the Issuers or any of their respective Restricted Subsidiaries to any other Restricted Subsidiaries which is not a Subsidiary Guarantor, (ii) Indebtedness of FCC to Foamex, (iii) any Indebtedness which by the express terms of the agreement or instrument creating, evidencing or governing the same is junior or subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bankany item of Senior Debt, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) any trade payable arising from the Lender waives: (x) notice purchase of acceptance goods or materials or for services obtained in the ordinary course of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection ofbusiness, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from Indebtedness incurred in violation of the holder of this Note to all Persons who become Indenture. To the holders of, or who continue to holdextent provided in the Indenture, Senior Interests, Debt must be paid before the Notes may be paid. The Issuers agree and these provisions are made for the benefit each Holder of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes Notes by accepting a Note consents and agrees that to the obligations represented by this Note are not secured by any interest subordination provided in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for Indenture and authorizes the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended Trustee to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)give it effect.
Appears in 1 contract
Sources: Indenture (Foamex Capital Corp)
Subordination. CSM and the Borrower hereby agree with and undertake to the Security Trustee and each of the Secured Parties that, notwithstanding anything to the contrary contained in any agreement or other document constituting or evidencing the Subordinated Indebtedness, before the Discharge Date the Subordinated Indebtedness and the rights and claims of CSM in relation to the Subordinated Indebtedness are subordinated to the Senior Indebtedness and the respective rights and claims of the Secured Parties in relation to the Senior Indebtedness and accordingly, subject as provided in this Agreement, payments of any amount of the Subordinated Indebtedness (whether in the event of the winding-up of the Borrower or otherwise) are conditional upon all of the Senior Indebtedness having first been fully satisfied and discharged and no payment of any amount of the Subordinated Indebtedness which, but for this Agreement, would otherwise fall due for payment will fall so due, and instead such payment will fall due only if and when the Senior Indebtedness has been fully satisfied and discharged and, if the Subordinated Indebtedness or any part thereof is paid by its acceptance or on behalf of the Borrower to CSM, that payment shall be forthwith paid over by CSM to the Security Trustee, Provided that notwithstanding anything to the contrary in this Note, Lender hereby acknowledge Agreement and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacityFinancing Documents, the “Administrative Agent”) for itself Borrower may, at any time and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, for so long as an Event of Default has not occurred and is not continuing unwaived, at its option either (1) make payments to CSM in relation to the “Receivables Purchase Agreement”). Subordinated Indebtedness and/or (2) by notice to the Security Trustee and CSM reduce the Subordinated Indebtedness (in any manner which CSM and the Borrower shall, may at the relevant time agree) subject to the terms satisfaction by the Borrower of this Section 3the following conditions:
3.1.1 the amount standing to the credit of the Debt Service Reserve Account at the time of such payment and/or reduction is not less than US$129,000,000; and
3.1.2 the Borrower has provided a written confirmation to the Security Trustee, have duly signed by an authorised signatory of the right Borrower, confirming that it will not be in breach of the covenants in Clauses 16(A)(15)(a) and 16(A)(15)(b) of the Credit Agreement on the immediately succeeding Calculation Date (after taking into account such payment and/or reduction) and setting out in reasonable detail the basis of calculation for which such confirmation is made. Any such amount repaid to pay all or CSM pursuant to Clause 3.1(1) above and the amount of any reduction referred to in Clause 3.1(2) above shall cease to form part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement Subordinated Indebtedness (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders"RELEASED AMOUNT").
Appears in 1 contract
Sources: Subordination Agreement (Chartered Semiconductor Manufacturing LTD)
Subordination. Borrower and(a) Except as otherwise specified, the Company agrees, and each Holder of the Notes by its acceptance of this Noteaccepting the Notes agrees, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior the indebtedness evidenced by the Notes is subordinated in right of payment payment, to all Aggregate Unpaids (as defined the extent and in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bankmanner provided in this Section 2.06, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms prior payment in full of this Section 3, have all Senior Indebtedness and that the right to pay all or any part subordination is for the benefit of the unpaid principal amount holders of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. Senior Indebtedness.
(b) In the event of (a) any dissolutioninsolvency or bankruptcy case or proceeding, winding upor any receivership, liquidation, readjustment, reorganization or other similar event relating case or proceeding in connection therewith, relative to Borrowerthe Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary, partial or complete, involuntary and whether in or not involving insolvency or bankruptcy, insolvency or receivership proceedings, or upon an (c) any assignment for the benefit of creditors, creditors or any other marshaling marshalling of the assets and liabilities of Borrower or any sale the Company:
(i) holders of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender Indebtedness shall be entitled to receive payment in full in cash of the principal thereof, premium, if any, additional amounts owing in respect thereof, if any, and interest (including interest accruing after the commencement of any such proceeding) to retain the date of payment on the Senior Indebtedness before Holders shall be entitled to receive any payment of principal of or interest on Notes;
(ii) until the Senior Indebtedness is paid in full in cash, any indebtedness to which Holders of the Notes or the Trustee would be entitled but for this Section 2.06 shall be made to holders of Senior Indebtedness as their interests may appear for the application to the payment thereof, except that Holders of the Notes may receive securities that are subordinated to Senior Indebtedness to at least the same extent as the Notes; and
(iii) the Trustee is entitled to conclusively rely upon an order or decree of a court of competent jurisdiction or a certificate of a bankruptcy trustee or other similar official for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of Senior Indebtedness and other Company debt, the amount thereof or payable thereon and all other pertinent facts relating to the Trustee’s obligations under this Section 2.06. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any of the Notes shall have received any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of assets of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution Company of any kind or character from Borrower character, whether in cash, property or from other source whatsoeversecurities, in respect including by way of this Note, other than as expressly permitted by the terms of this Note, set-off or any such payment or other distribution shall which may be received for the sole benefit payable or deliverable by reason of the Senior Interest Holders and shall be turned over by payment of any other indebtedness of the Lender Company being subordinated to the Administrative Agent (for the benefit payment of the Notes, before all Senior Interest Holders) forthwith. Notwithstanding any payments Indebtedness is paid in full or distributions received by the Senior Interest Holders in respect of this Notepayment thereof provided for, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated and if such fact shall, at or prior to the then existing rights time of such payment or distribution, have been made known to a Responsible Officer of the Senior Interest Holders Trustee in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstatedwriting or, as the case may be, as though such Holder of the Notes, then and in such event such payment had or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. Any taxes that have been withheld or deducted from any payment or distribution in respect of the Notes, or any taxes that ought to have been withheld or deducted from any such payment or distribution that have been remitted to the relevant taxing authority, shall not been madebe considered to be an amount that the Trustee or the Holder of any of the Notes receives for purposes of this Section.
(c) The Company may not pay principal, premium, interest or additional amounts owing with respect to the Notes and may not acquire any Notes for cash or property other than capital stock of the Company if:
(i) (A) in the event and during the continuation of any default in the payment of principal, premium, if any, or interest on any Senior Indebtedness beyond any applicable grace period with respect thereto or (B) a default on Senior Indebtedness occurs and is continuing that permits holders of such Senior Indebtedness (or a trustee on their behalf) to accelerate its maturity, or
(ii) the default is the subject of judicial proceedings or the Company receives a notice of the default from a person who may give it pursuant to Section 2.06(l) hereof. The Company may resume payments on the Notes and may acquire them when:
(iii) the default is cured or waiver; or
(iv) if this Section 2.06 otherwise permits the Lender waives: payments or acquisition at that time.
(xd) notice In the event that any Notes are declared due and payable before their Stated Maturity Date, then and in such event the holders of acceptance Senior Indebtedness shall be entitled to receive payment in full of these all amounts due or to become due on or in respect of all Senior Indebtedness or provision shall be made for such payment in cash, before the Holders of the Notes are entitled to receive any payment (including any payment which may be payable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Notes) by the Company on account of the principal of, premium, if any, additional amounts owing in respect thereof, if any or interest on the Notes or on account of the purchase or other acquisition of Notes; provided, that any money deposited pursuant to Article IV of the Base Indenture not in violation of the Indenture shall not be subject to the claims of holders of Senior Indebtedness. In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Note prohibited by the foregoing provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to a Responsible Officer of the Trustee in writing or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Company.
(e) If payment or distribution on account of the Notes of any character or security, whether in cash, securities or other property, is received by Holder, including any applicable Trustee, in contravention of any of the terms of this Section 2.06 and before all Senior Interest Holders; (y) notice of the existenceIndebtedness has been paid in full, creation, non-such payment or non-performance distribution or security will be received in trust for the benefit of, and must be paid over or delivered and transferred to, holders of Senior Indebtedness at the time outstanding in accordance with the priorities then existing among those holders of Senior Indebtedness for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full.
(f) The Company shall promptly notify the Trustee, in writing, and any Paying Agent of any facts known to the Company that would cause a payment on the Notes to violate this Section 2.06.
(g) After all Senior Indebtedness is paid in full and until the Notes are paid in full, Holders shall be subrogated to the rights of holders of Senior Indebtedness to receive payments or any distributions applicable to Senior Indebtedness to the extent that distributions otherwise payable to the Holders have been applied to the payment of Senior Indebtedness. A payment or distribution made under this Section 2.06 to holders of Senior Indebtedness which otherwise would have been made to Holders is not, as among the Company, its creditors other than the holders of Senior Indebtedness and Holders, a payment or distribution by the Company on account of the Senior Interests; and Indebtedness.
(zh) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this This Section 3 are 2.06 is intended solely for the purpose of defining to define the relative rights of the Lender, Holders on the one hand, hand and the holders of Senior Interest Holders Indebtedness on the other hand. Nothing contained in this Note is intended to the Indenture or shall in the Notes shall:
(i) impair, as between Borroweramong the Company, its creditors (other than the holders of Senior Interest Holders) Indebtedness and the LenderHolders of the Notes, Borrower’s obligationthe obligation of the Company, which is unconditional absolute and absoluteunconditional, to pay to the Lender Holders of the Notes the principal of of, premium, if any, additional amounts in respect thereof, if any, and interest on this Note the Notes as and when the same shall become due and payable in accordance with their terms;
(ii) affect the terms hereof or to affect then relative rights of the Lender Holders and creditors of Borrower the Company other than holders of Senior Indebtedness; or
(iii) prevent the Trustee or any Holder from exercising its available remedies upon an Event of Default, subject to the rights of holders of Senior Indebtedness to receive payments or distributions otherwise payable to Holders or the Trustee. If the Company fails because of this Section 2.06 to pay principal, premium, if any, additional amounts in respect thereof, if any, or interest on any of the Notes on the due date, such failure shall constitute a default hereunder.
(i) No right of any holder of Senior Indebtedness to enforce the subordination of the indebtedness evidenced by the Notes shall be impaired by any act or failure to act by the Company or by its failure to comply with the Indenture.
(j) Whenever a distribution is to be made or a notice given to holders of Senior Indebtedness, the distribution may be made and the notice given to their Representative.
(k) The Trustee or any Paying Agent may continue to make payments on the Notes until it receives written notice of facts that would cause a payment of principal of or interest on the Notes to violate this Section 2.06. Only the Company, a Representative or a holder of an issue of Senior Indebtedness that has no Representative may give the written notice. The Trustee has no fiduciary duty to the holders of Senior Indebtedness other than as created under this Indenture. The Trustee in its individual or any other capacity may hold Senior Indebtedness with the same rights it would have if it were not Trustee. Notwithstanding anything herein to the contrary, the Company’s obligation to pay, and the Company’s payment of, the amounts required by Section 6.07 of the Base Indenture are excluded from the operation of this Section 2.06. For the sake of clarity, such payments are not subordinated to the Company’s Senior Indebtedness.
(l) Nothing contained in this Section 2.06 or elsewhere in the Indenture or in any of the Notes shall prevent (a) the Company, at any time except during the pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshalling of assets and liabilities of the Company referred to in Section 2.06(b) hereof or under the conditions described in Section 2.06(c) or Section 2.06(d) hereof, from making payments at any time of or on account of the principal of, premium, if any, additional amounts owing in respect thereof, if any or interest on the Notes or on account of the purchase or other acquisition of the Notes, or (b) the application by the Trustee of any money deposited with it hereunder to the payment of or on account of the principal of, premium, if any, additional amounts owing in respect thereof, if any, or interest on the Notes or the retention of such payment by the Holders, if, at the time of such application by the Trustee, it did not have knowledge (in accordance with Section 2.06(f) hereof) that such payment would have been prohibited by the provisions of this Section 2.06.
(m) Each Holder of a Note by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Section 2.06 and appoints the Trustee his attorney-in-fact for any and all such purposes.
(n) Upon any payment or distribution of assets of the Company referred to in this Section 2.06, the Trustee, subject to the provisions of Section 6.02 of the Base Indenture, and the Holders of the Notes shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of the Notes, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 2.06.
(o) In case at any time any Paying Agent other than the Senior Interest Holders)Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in Section 2.06 shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Section 2.06 in addition to or in place of the Trustee.
Appears in 1 contract
Sources: Third Supplemental Indenture (ConnectOne Bancorp, Inc.)
Subordination. Each Subordinated Creditor hereby subordinates (i) all present and future Indebtedness of the Borrower and, by its acceptance of this Note, Lender hereby acknowledge to such Subordinated Creditor and agree that (ii) any and all payments made obligations or liabilities of the Borrower and any rights of such Subordinated Creditor now existing or hereafter arising, absolute or contingent, arising by contract, at law or otherwise, with respect to dividends payable on the Capital Stock, the purchase, redemption or other acquisition by the Borrower of such Capital Stock and any other amount payable to the holders of such Capital Stock as such (collectively the "Subordinated Indebtedness"), to any and all Indebtedness now or hereafter owing by the Borrower (including any interest accruing after the commencement of any proceeding by or against the Borrower under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, and any other interest that would have accrued but for the commencement of such proceeding, whether or not any such interest is allowed as a claim enforceable against the Borrower in such proceeding) to the Senior Creditor (the "Senior Indebtedness") to the extent and in the manner hereinafter set forth, and such Subordinated Creditor agrees not to demand, accept or receive any payment in respect of this Note the Subordinated Indebtedness, including, without limitation, any payment received through the exercise of any right of setoff, counterclaim or cross claim, or any collateral therefor, or any right to cause the Borrower to redeem, purchase, assume or otherwise retire the Subordinated Indebtedness, in contravention hereof:
(i) In the event of any insolvency or bankruptcy proceedings, or any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Borrower or to its creditors, as such, or to its properties, or in the event of any proceedings for voluntary liquidation, dissolution or other winding up of the Borrower, whether or not involving insolvency or bankruptcy, then the Senior Creditor shall be entitled to receive payment in full in cash of all of the Senior Indebtedness before such Subordinated Creditor is entitled to receive any payment in respect of the Subordinated Indebtedness (except securities which are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”Indebtedness then outstanding), pursuant and to that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, end the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part holder of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender Indebtedness shall be entitled to receive and to retain for application in payment thereof any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower character, whether in cash or from other source whatsoeverproperty or securities, which may be payable or deliverable in any such proceedings in respect of the Subordinated Indebtedness; and
(ii) No amount shall be paid (except in securities which are subordinate and junior in right of payment to all Senior Indebtedness then outstanding, it being understood that all such securities shall constitute "Subordinated Indebtedness" hereunder), whether in cash, property, or securities or otherwise, and the Subordinated Creditors will not exercise any rights with respect to the Capital Stock, in respect of this Notethe Subordinated Indebtedness, other than except as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Credit Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Pledge Agreement.
Appears in 1 contract
Sources: Affiliate Subordination Agreement (Monitronics International Inc)
Subordination. Borrower and, by its acceptance of this Note, (a) The Lender hereby acknowledge agrees for itself and agree for its successors and assigns that any and all payments made in respect of the indebtedness evidenced by this Note are and shall remain subordinate is hereby expressly subordinated and junior in right of payment to the prior payment in full of all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, principal and unpaid accrued interest and all other obligations of the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant Borrower under that certain Receivables Purchase Loan and Security Agreement dated as of December 21June 26, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent 2006 (as amended, modified, supplemented or restated or otherwise modified from time to time, the “Receivables Purchase Loan Agreement”) by and between W▇▇▇▇ Fargo Retail Finance, LLC and the Borrower (the “Senior Indebtedness”). .
(b) In the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar proceedings relative to the Borrower shallor its property, or of any proceedings for voluntary liquidation, dissolution or winding up of the Borrower, whether or not involving insolvency or bankruptcy proceedings, the Senior Indebtedness shall first be paid in full in cash before any payment in cash or other property is made on account of this Note, and in any such proceedings, any payment or distribution of any kind or character, whether in cash or other property (except payments in securities which are subordinate and junior to the payment of the Senior Indebtedness then outstanding in accordance with this Note), to which the Lender would be entitled if this Note were not subordinated to the Senior Indebtedness, shall be paid by the liquidating trustee or other person making such payment or distribution, or by the Subordinate Lender if received by it, directly to the holders of the Senior Indebtedness to the extent necessary to make payment in full in cash of the Senior Indebtedness remaining unpaid (whether or not then due), after giving effect to any concurrent payment or distribution to or for the holders of the Senior Indebtedness.
(c) Subject to the rights, if any, of the holders of the Senior Indebtedness under this Section 4 to receive cash, securities or other properties otherwise payable or deliverable to the Holder of this Note, nothing contained in this Section 4 shall impair, as between the Company and the Holder, the obligation of the Company, subject to the terms of this Section 3and conditions hereof, have the right to pay all or any part of to the unpaid Holder the principal amount of this Note without premium or penalty at any time; provided, that hereof and interest shall be paid on hereon as and when the amount repaid to same become due and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedingspayable, or upon an assignment for shall prevent the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect Holder of this Note, other than as expressly permitted upon default hereunder, from exercising all rights, powers and remedies otherwise provided herein or by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender applicable law.
(d) Subject to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids all Senior Indebtedness and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)until this Note shall be paid in full, the Lender Holder shall be subrogated to the then existing rights of the holders of Senior Interest Holders, if any. In accepting this Note, Indebtedness (to the Lender agrees that (iextent of payments or distributions previously made to such holders of Senior Indebtedness pursuant to the provisions of Section 4(c) above) to receive payments or distributions of assets of the Lender shall not, until Borrower applicable to the Senior Interest has been paid and performed in full and in cash, transfer, pledge Indebtedness. No such payments or assign, or commence legal proceedings distributions applicable to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impairIndebtedness shall, as between Borrowerthe Borrower and its creditors, its creditors (other than the holders of Senior Interest Holders) Indebtedness and the LenderHolder, Borrower’s obligationbe deemed to be a payment by the Borrower to or on account of this Note; and for the purposes of such subrogation, no payments or distributions to the holders of Senior Indebtedness to which is unconditional the Holder would be entitled except for the provisions of this Section 4 shall, as between the Borrower and absoluteits creditors, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the holders of Senior Interest Holders)Indebtedness and the Holder, be deemed to be a payment by the Borrower to or on account of Senior Indebtedness.
Appears in 1 contract
Sources: Note Agreement (Redenvelope Inc)
Subordination. Borrower andThe Subordinating Party will not ask, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collecttake or receive from Borrowers, receive and receipt by setoff or in any other manner, the whole or any part of any monies, whether for principal, interest, including, but not limited to, any and all such payments post-petition interest owed by or distributionson account of Borrowers to the Subordinating Party, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind amount which may now or character from Borrower or from other source whatsoeverhereafter be owing by Borrowers, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection its respective successors or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrowerassigns, including, without limitation, a receiver, custodian, trustee or debtor in possession (the term "Borrower" herein shall include any Receivables such successor or Related Securityassign of the same) to the Subordinating Party under the Subordinated Note (the indebtedness, obligations and liabilities under the Subordinated Note being hereinafter referred to as the "Subordinated Indebtedness"), nor any security for the Subordinated Indebtedness, unless and until all Debt (as defined in the Credit Agreement) shall have been fully paid and satisfied with interest, including, but not limited to, any and all post-petition interest owed by or on account of Borrowers to Lender. All rights, liens and security interests of the Subordinating Party securing the Subordinated Indebtedness, whether now or hereafter arising and howsoever existing, in any assets of Borrowers or any assets securing the Debt shall, be and hereby are subordinated to the rights and interests of Lender in those assets; and the Subordinating Party shall have no right to possession of any such assets or to foreclose upon any such assets, whether by judicial action or otherwise, unless and until all of the Debt shall have been fully paid and satisfied. The provisions set forth in this Section 3 are intended solely for Subordinating Party also hereby agrees that, regardless of whether the purpose of defining Debt is secured or unsecured, the relative rights of Subordinating Party shall be subordinated to Lender with respect to the Lender, on Subordinating Party's claims against Borrowers with respect to the one handSubordinated Indebtedness, and the Senior Interest Holders on Subordinating Party's rights, liens and security interest, if any, in any of the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) Borrowers' assets and the Lenderproceeds thereof (and any other assets securing the Debt), Borrower’s obligation, which is unconditional until all of the Debt shall have been fully paid and absolutesatisfied. The Subordinating Party acknowledges and agrees that, to pay the Lender extent the principal terms and provisions of and interest on this Note as and when the same shall become due and payable in accordance Agreement are inconsistent with the terms hereof or Subordinated Note, the Subordinated Note shall be deemed to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)have been superseded.
Appears in 1 contract
Sources: Credit and Security Agreement (Trans Industries Inc)
Subordination. Borrower andThe indebtedness evidenced by this Global Note is, by its acceptance to the extent provided in Article Eleven of this Notethe Indenture, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior subject in right of payment to the prior payment in full of all Aggregate Unpaids Senior Indebtedness (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”Indenture), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, this Global Note is issued subject to the terms provisions of the Indenture with respect thereto. Each Holder of this Section 3Global Note, have by accepting the right to pay all same, agrees that each holder of Senior Indebtedness, whether created or any part acquired before or after the issuance of the unpaid principal Notes, shall be deemed conclusively to have relied on such provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Indebtedness. The Indenture also provides that if, upon the occurrence of certain events of bankruptcy or insolvency relating to the Company or bankruptcy, insolvency, receivership or similar proceedings of Bank United, a federally chartered savings bank and indirect subsidiary of the Company ("Bank"), there remains, after giving effect to such subordination provisions, any amount of this Note without premium cash, property or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment securities available for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect of Notes (as defined in the Indenture, "Excess Proceeds"), and if, at such time, any Entitled Person (as defined in the Indenture) has not received payment in full of all amounts due or to become due on or in respect of Other Financial Obligations (as defined in the Indenture), then such Excess Proceeds shall first be applied to pay or provide for the payment in full of such Other Financial Obligations before any payment or distribution may be made in respect of Notes. This Global Note is also issued subject to the provisions of the Indenture regarding payments to Entitled Persons in respect of Other Financial Obligations. Each Holder of this Note. In order to implement the foregoing, in accepting this Global Note, by accepting the Lender hereby irrevocably same, (a) agrees that to and shall be bound by all of such provisions, (b) authorizes and directs the Administrative Agent, Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination of this Global Note and payment of Excess Proceeds as provided in the name of Indenture and (c) appoints the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt Trustee as his attorney-in-fact for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)purposes.
Appears in 1 contract
Sources: Indenture (Bank United Corp)
Subordination. Borrower and, by its acceptance of this Note, Lender (a) Each Grantor hereby acknowledge and agree that subordinates any and all payments made in respect of this Note are debts, liabilities and shall remain subordinate other Obligations owed to such Grantor by each other Grantor (the "Subordinated Obligations") to the Senior Debt Obligations to the extent and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement manner hereinafter describedset forth in this Section 9.03.
(b) owed Except during the continuance of a Default (including the commencement and continuation of any Insolvency Proceeding relating to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various any other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”Grantor), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified each Grantor may receive regularly scheduled payments from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part other Grantor on account of the unpaid principal amount Subordinated Obligations. After the occurrence and during the continuance of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and Default (including the date of repayment. In the event commencement and continuation of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event Insolvency Proceeding relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling Grantor), however, unless the Required Lenders otherwise agree, no Grantor shall demand, accept or take any action to collect any payment on account of the assets and liabilities of Borrower or Subordinated Obligations.
(c) In any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”)Insolvency Proceeding relating to any other Grantor, the Senior Interest shall first be paid and performed in full and in cash before the Lender each Grantor agrees that each Creditor Party shall be entitled to receive payment in full in cash of all Senior Debt Obligations owed to such Creditor Party (including all interest and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding ("Post Petition Interest")) before such Grantor receives payment of any Subordinated Obligations.
(d) After the occurrence and during the continuance of any Default (including the commencement and continuation of any Insolvency Proceeding relating to retain any payment or distribution in respect to this Note. In order to implement other Grantor), each Grantor shall, if the foregoing, in accepting this Note, Collateral Agent (acting at the Lender hereby irrevocably agrees that direction of the Administrative Agent) so requests, collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Creditor Parties and deliver such payments to the Collateral Agent on account of the Senior Debt Obligations owed to the Creditor Parties (including all Post Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of such Grantor under the other provisions of this Agreement or any other Financing Document to which it is a party.
(e) After the occurrence and during the continuance of any Default (including the commencement and continuation of any Insolvency Proceeding relating to any other Grantor), the Collateral Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of each Grantor, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for Senior Debt Obligations (including any and all such payments or distributionsPost Petition Interest), and file(ii) to require each Grantor (A) to collect and enforce, prove and vote or consent to submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on such Bankruptcy Proceedings with respect obligations to the Collateral Agent for application to the Secured Obligations (including any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest HoldersPost Petition Interest).
Appears in 1 contract
Sources: Amendment Agreement No. 3 and Consent (Allegheny Energy, Inc)
Subordination. Borrower and, by its acceptance of this Note, (a) Each Subordinated Lender hereby acknowledge agrees that all its right, title and agree that interest in, to and under any and all payments made in respect Subordinated Intercompany Obligations of this Note are and any Subordinated Debtor shall remain subordinate be subordinate, and junior in right of payment payment, to the rights of the Senior Lenders in respect of the Secured Obligations of such Subordinated Debtor, including principal, premium (if any), interest (including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to a Subordinated Debtor, whether or not a claim for post-filing interest is allowed or allowable in any such proceeding), fees, charges, expenses, indemnities, reimbursement obligations, Guarantees and all Aggregate Unpaids other amounts payable thereunder or in respect thereof (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacitycollectively, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest HoldersObligations”).
(b) Each Subordinated Debtor and each Subordinated Lender agrees (in each case solely with respect to the Subordinated Intercompany Obligations in respect of which it is the obligor or obligee, pursuant as the case may be), that, notwithstanding any provision to the contrary in any agreement governing or evidencing Subordinated Intercompany Obligations, no payment (whether directly, by purchase, redemption or exercise of any rights of setoff or otherwise and whether mandatory or voluntary) in respect of the Subordinated Intercompany Obligations, whether of principal, interest or otherwise, and whether in cash, securities or other property, shall be made by or on behalf of any Subordinated Debtor or received, accepted or demanded, directly or indirectly, by or on behalf of any Subordinated Lender at any time prior to the payment in full of all the Senior Obligations; provided that certain Receivables Purchase Agreement dated as of December 21the Subordinated Debtors may make interest and principal payments in the ordinary course, 2009 by and among Borrower, the Purchasers and the Administrative AgentSubordinated Lenders may receive, BorgWarner Inc. as collection agent accept and demand such payments, if at the time of and immediately after giving effect to any such payment, no Event of Default shall have occurred and be continuing or would result therefrom.
(as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of c) Upon any dissolution, winding up, liquidation, readjustmentdistribution of assets or reorganization of any Subordinated Debtor, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency insolvency, reorganization, arrangement or receivership proceedings, proceedings or upon an any assignment for the benefit of creditors, creditors or any other marshaling marshalling of the assets and liabilities of Borrower any Subordinated Debtor (any such proceeding or any sale of all or substantially all of the assets of Borrower event, a “Reorganization Proceeding”):
(such proceedings being herein collectively called “Bankruptcy Proceedings”), i) the Senior Interest Lenders shall first be paid and performed entitled to receive indefeasible payment in full and in cash of the Senior Obligations (whenever arising) before the any Subordinated Lender shall be entitled to receive and any payment on account of the Subordinated Intercompany Obligations of such Subordinated Debtor, whether of principal, interest or otherwise; and
(ii) any payment by, or on behalf of, or distribution of the assets of, such Subordinated Debtor of any kind or character, whether in cash, securities or other property, to retain which any Subordinated Lender would be entitled but for the provisions of this Section 1 shall be paid or delivered by the person making such payment or distribution (whether a trustee in respect bankruptcy, a receiver, custodian or liquidating trustee or otherwise) directly to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, for the benefit of the Senior Lenders (pro rata, in accordance with the respective amounts of the Senior Obligations then owing to each of the Senior Lenders), until the indefeasible payment in full of all Senior Obligations. Each Subordinated Lender agrees not to ask, demand, ▇▇▇ for or take or receive from any Subordinated Debtor in cash, securities or other property or by setoff, purchase or redemption (including from or by way of collateral), payment of all or any part of the Subordinated Intercompany Obligations (other than any payments of interest and principal to the extent permitted by Section 1(b) above and not prohibited by the first sentence of this paragraph) and agrees that in connection with any proceeding involving any Subordinated Debtor under any bankruptcy, insolvency, reorganization, arrangement, receivership or similar law (A) the Administrative Agent is irrevocably authorized and empowered (in its own name or in the name of the such Subordinated Lender or otherwise), may but shall have no obligation, to demand, ▇▇▇ for, collectcollect and receive every payment or distribution referred to in the preceding sentence and give acquittance therefor and to file claims and proofs of claim, receive and receipt for any and if the Subordinated Lender shall fail to do so prior to 30 days before the expiration of the time to file such proofs of claim (provided that such Subordinated Lender shall deliver a copy of all such payments or distributionsproofs of claim to the Administrative Agent), and filetake such other action (other than voting the Subordinated Intercompany Obligations but including enforcing any security interest or other lien securing payment of such Subordinated Intercompany Obligations) as the Administrative Agent may deem necessary or advisable for the exercise or enforcement of any of the rights or interest of the Senior Lenders and (B) such Subordinated Lender shall duly and promptly take such action as the Administrative Agent may request to (1) collect amounts in respect of the Subordinated Intercompany Obligations for the account of the Senior Lenders and to file appropriate claims or proofs of claim in respect of such Subordinated Intercompany Obligations, prove (2) execute and vote deliver to the Administrative Agent such irrevocable powers of attorney, assignments or consent other instruments as the Administrative Agent may request in any such Bankruptcy Proceedings with respect order to enable the Administrative Agent to enforce any and all claims with respect to, and any security interests and other liens securing payment of, the Subordinated Intercompany Obligations and (3) collect and receive any and all payments or distributions which may be payable or deliverable upon or with respect to the Subordinated Intercompany Obligations. A copy of this Agreement may be filed with any court as evidence of the Lender relating to this NoteSenior Lenders’ rights, in each case until the Senior Interests shall have been paid powers and performed in full and in cash. authority hereunder.
(d) In the event that the Lender receives any payment by or other on behalf of, or any distribution of the assets of, any Subordinated Debtor of any kind or character from Borrower character, whether in cash, securities or from other source whatsoeverproperty, and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, in respect of the Subordinated Intercompany Obligations shall be received by or on behalf of any Subordinated Lender or any Affiliate thereof at a time when such payment is prohibited by this Note, other than as expressly permitted by the terms of this NoteAgreement, such payment or other distribution shall be received held by such Subordinated Lender in trust (segregated from other property of such Subordinated Lender) for the sole benefit of the Senior Interest Holders of, and shall forthwith be turned paid over by the Lender to to, the Administrative Agent (Agent, for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by Lenders (pro rata, in accordance with the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights respective amounts of the Senior Interest Holders in respect Obligations then owing to each of the Senior Interests Lenders), until the Senior Interests have been paid and performed indefeasible payment in full and in cash. Upon of all Senior Obligations.
(e) Subject to the prior indefeasible payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)Senior Obligations, the each Subordinated Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and Lenders to receive payments or distributions in cash, transfer, pledge securities or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent other property of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect Subordinated Debtors applicable to Borrower the Senior Obligations until at least one year and one day shall have passed since all amounts owing on the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or Obligations shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence indefeasibly paid in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interestsfull, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining such subrogation, as between and among the relative rights of Subordinated Debtors and their creditors (other than the LenderSenior Lenders), on the one hand, and the Senior Interest Holders Subordinated Lenders, on the other hand. Nothing contained in , no payment or distribution made to any Senior Lender by virtue of this Note is Agreement that otherwise would have been made to the Subordinated Lenders shall be deemed to be a payment by the Subordinated Debtors of an amount owing on the Senior Obligations.
(f) Each Subordinated Lender agrees that the Subordinated Intercompany Obligations are intended to be unsecured and not Guaranteed by the Company or any Subsidiary, and each Subordinated Debtor agrees not to give, or permit to be given, and each Subordinated Lender agrees not to ask for, demand, accept or receive, any security for the Subordinated Intercompany Obligations or any Guarantee of the Subordinated Intercompany Obligations from the Company or any Subsidiary. Notwithstanding the foregoing, all the proceeds of any (i) security of any nature whatsoever for any Subordinated Intercompany Obligations on any property or assets, whether now existing or hereafter acquired, of the Company or any Subsidiary or (ii) any Guarantee, of any nature whatsoever, by the Company or any Subsidiary of any Subordinated Intercompany Obligations shall impair, as between Borrower, its creditors be subject to the provisions hereof with respect to payments and other distributions in respect of the Subordinated Intercompany Obligations.
(g) Upon any assignment of Subordinated Intercompany Obligations to any Person other than the Borrower or a Subsidiary made prior to the indefeasible payment in full of all Senior Interest Holders) and Obligations, the LenderSubordinated Lender shall place upon the instruments creating or evidencing the Subordinated Intercompany Obligations, Borrower’s obligationwhether upon refunding, extension, renewal, refinancing, replacement or otherwise, including any global intercompany note evidencing any such obligations, the following legend:
A. Notwithstanding anything contained herein to the contrary, neither the principal of nor the interest on, nor any other amounts payable in respect of, the indebtedness created or evidenced by this instrument or record shall become due or be paid or payable, except to the extent permitted under the Intercompany Subordination Agreement, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when incorporated herein with the same shall effect as if fully set forth herein.”
(h) Each Subordinated Lender agrees that, prior to the indefeasible payment in full of all Senior Obligations, it will not take any action to cause any Subordinated Intercompany Obligations to become due and payable prior to their stated maturity or exercise any remedies or take any action or proceeding to enforce any Subordinated Intercompany Obligations, in accordance with each case, if the terms hereof or to affect payment of such Subordinated Intercompany Obligations is then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)prohibited by this Agreement.
Appears in 1 contract
Sources: Credit Agreement (NCR Corp)
Subordination. Borrower The Securities constitute direct and unsecured obligations of the Company which are unconditional and subordinated. Claims in respect of each series of the Securities shall at all times rank equally and pari passu and without any preference among themselves and at least equally and ratably with all other present and future unsecured, unconditional and dated subordinated obligations of the Company (including obligations in respect of dated subordinated guarantees provided by the Company) and in priority to the rights and claims of holders of all present and future unsecured, undated, conditional and subordinated obligations of the Company (including those in respect of perpetual subordinated notes issued by the Company), and holders of all classes of equity (including holders of preference shares (if any)) of the Company, subject to a Viability Write-Down, as described in Section 13.02. The rights of the holders of Securities will be subordinated upon a Subordination Event and, by its acceptance if on or prior to any date on which payment under the Securities becomes due a Subordination Event has occurred, and so long as any such Subordination Event shall continue, any amounts (other than any amounts which shall have become due and payable before such Subordination Event and remain unpaid) due under the Securities will become payable only upon one of this Notethe following conditions being fulfilled:
(a) in the case of a Japanese Bankruptcy Event, Lender hereby acknowledge and agree that the total amount of any and all payments made Senior Indebtedness which is listed on the final distribution list of the Company submitted to the court in respect such bankruptcy proceedings shall have been assured to be paid in full out of this Note are and shall remain subordinate and junior the amounts available for distribution in right such bankruptcy proceedings (including by way of payment to all Aggregate Unpaids distributions by deposit of funds in escrow with the competent authority),
(as defined b) in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacitycase of a Japanese Corporate Reorganization Event, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal total amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims Senior Indebtedness which is listed on the reorganization plan of the Lender relating to this Note, in each case until Company at the Senior Interests time when the court’s approval of such plan becomes final and conclusive shall have been paid and performed in full and in cash. In such proceedings to the event extent that such liabilities shall have been fixed,
(c) in the Lender receives any payment or other distribution case of a Japanese Civil Rehabilitation Event, the total amount of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by and all Senior Indebtedness which is listed on the terms of this Note, such payment or other distribution shall be received for the sole benefit rehabilitation plan of the Senior Interest Holders Company at the time when the court’s approval of such plan becomes final and conclusive shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full in such proceedings to the extent that such liabilities shall have been fixed (provided, however, that if the court finally and in cash. Upon payment in full conclusively (i) approves summary or consent rehabilitation proceedings or the cancellation of the Aggregate Unpaids rehabilitation plan, or (ii) cancels or discontinues the rehabilitation proceedings, this provision shall not apply, as if the Company had never been subject to a Japanese Civil Rehabilitation Event), or
(d) in the case of a Foreign Event, conditions equivalent to those set out in (a), (b) or (c) above have been fulfilled; provided that, notwithstanding any provision herein to the contrary, if the imposition of any such condition is not allowed under such proceedings, any amount which becomes due under the Securities shall become payable in accordance with the conditions for payment set forth in this Indenture and termination not subject to such impermissible condition. Notwithstanding that the Securities are stated to rank equally and ratably with certain dated subordinated obligations and ahead of certain junior securities of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)Company as described above, the Lender shall be subrogated Securities are subject to the then existing rights a Viability Write-Down, as described in Article 13. A Holder of the Senior Interest Holders, if any. In accepting this Note, the Lender a Security by acceptance of such Security agrees that (i) if any payment of principal of or interest on such Security is made to such Holder of such Security after the Lender shall notoccurrence of a Subordination Event and the amount of such payment exceeds the amount, until the Senior Interest has if any, that should have been paid to such Holder upon the proper application of the provisions of this Section 12.01, the payment of such excess amount shall be deemed null and performed in full void and in cashsuch Holder shall be obliged to return the amount of such excess payment within ten days after receiving notice of the excess payment, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; and (ii) upon the Lender occurrence of a Subordination Event and for so long as such Subordination Event shall notcontinue, without the advance written consent any liabilities of the Administrative AgentCompany to such Holder under the Securities which would otherwise become so payable on or after the date on which such Subordination Event occurs shall not be set off against any liabilities of such Holder owed to the Company unless, commence, or join with any other Person until and only in commencing, any Bankruptcy Proceedings such amount as the liabilities of the Company under the Securities become payable pursuant to the proper application of this Section 12.01. The Trustee shall have no responsibility for nor liability with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) return of any Senior Interest is rescinded or must be restored or returned by amount that was paid to any Holder following a Senior Interest Holder (whether Subordination Event in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any excess of the Senior Interest Holders; (y) notice of amount that should have been paid to such Holder based on the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder proper application of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)12.01.
Appears in 1 contract
Sources: Subordinated Indenture (Mizuho Financial Group Inc)
Subordination. Borrower and(a) All claims of the Holder to principal, interest and any other amounts at any time owed under this Note (collectively, “Junior Indebtedness”) is hereby expressly subordinated in right of payment, as herein set forth, to the prior payment in full of all Senior Indebtedness (as defined below). No payment under Junior Indebtedness shall be made by the Company, nor shall the Holder exercise any remedies under the Junior Indebtedness (including taking any legal action (whether judicial or otherwise) to collect the Junior Indebtedness), if, at the time of such payment, exercise or immediately after giving effect thereto, (i) there shall exist any material “Default” or “Event of Default” under any agreements governing any of the Senior Indebtedness, upon which the Company shall notify the Holder in writing of such Default within three (3) days of its acceptance receipt of notice of the Default from the Senior Lender or (ii) the maturity of any of the Senior Indebtedness has been accelerated and (A) such acceleration has not been waived or (B) such Senior Indebtedness has not been paid in full; provided, however, that (x) in the event that the holder of any Senior Indebtedness accelerates such Senior Indebtedness, then the Holder may accelerate the indebtedness evidenced by this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in y) if the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to Company is permitted under the terms of this Section 3, have the right Senior Indebtedness to pay all or any part an amount due and owing under this Note and fails to make such payment, then so long as the terms of the unpaid principal amount of this Note without premium or penalty at any time; providedSenior Indebtedness do not prohibit such action, that interest shall the Holder may exercise its rights to be paid on such amount, but only such amount (and Holder shall not be permitted to accelerate hereunder).
(b) Upon any payment or distribution of assets of the amount repaid to and including the date of repayment. In the event Company of any dissolutionkind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up, liquidation, readjustment, up or total or partial liquidation or reorganization or other similar event relating to Borrowerof the Company, whether voluntary or involuntary, partial involuntary or complete, and whether in bankruptcy, insolvency insolvency, receivership or receivership other proceedings, or upon an assignment for the benefit of creditors, or any other marshaling all Senior Indebtedness of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Company shall first be paid and performed in full and full, or payment thereof provided for in cash money, before the Lender shall be entitled to receive and to retain any payment is made under Junior Indebtedness; and upon any such dissolution or winding up or liquidation or reorganization, any distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of assets of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution Company of any kind or character from Borrower character, whether in cash, property or from other source whatsoeversecurities, in respect to which the Holder as holder of this Notethe Junior Indebtedness would be entitled except for the provisions hereof, other than as expressly permitted shall be paid by the terms of this NoteCompany or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or other distribution shall be distribution, or by the Holder if received for by ▇▇▇▇▇▇, directly to the sole benefit holder of the Senior Interest Holders and shall be turned over by the Lender Indebtedness, or its representatives, to the Administrative Agent (extent necessary to pay all such Senior Indebtedness in full, in money, after giving effect to any concurrent prepayment or distribution to or for the benefit of the holders of such Senior Interest HoldersIndebtedness, before any payment or distribution is made to the Holder with respect to the Junior Indebtedness.
(c) forthwith. Notwithstanding If the holders of the Senior Indebtedness in good faith believe Holder may fail to timely file a proof of claim in any payments such proceeding, the holder(s) of the Senior Indebtedness may do so for Holder.
(d) In the event that any payment or distributions distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing where the holder has actual knowledge of a Senior Indebtedness payment default shall be received by the Holder before all the Senior Interest Holders Indebtedness is paid in respect of this Notefull, while any Bankruptcy Proceedings are pending or provisions made for such payment, in accordance with its terms, such payment or distribution shall be held for the Lender benefit of, and shall not be subrogated to paid over or delivered to, the then existing rights holders of the Senior Interest Holders in respect Indebtedness or their representative or representatives, as their respective interests may appear, for application to the payment of all the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated Indebtedness remaining unpaid to the then existing rights of the extent necessary to pay all such Senior Interest HoldersIndebtedness in full, if any. In accepting this Notein money, the Lender agrees that (i) the Lender shall notin accordance with its terms, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings after giving effect to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-concurrent payment or non-performance of all distribution to or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become for the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; Senior Indebtedness.
(vie) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 hereof are intended solely for the purpose of defining the relative rights of the Lender, holders of the Senior Indebtedness on the one hand, hand and the Senior Interest Holders Holder as holder of the Junior Indebtedness on the other hand. Nothing contained in this Note is intended to or , and nothing herein shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) Company and the LenderHolder, Borrower’s obligationthe obligations of the Company under the Junior Indebtedness, which is are unconditional and absolute. With this in mind, notwithstanding the other provisions of this Section 6, if and so long as all documents governing the Senior Indebtedness permit one of the actions restricted by this Section 6, the restriction shall be waived and the restricted action permitted hereunder.
(f) No right of any present or future holder of any Senior Indebtedness to pay enforce the Lender subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the principal part of the Company or any act or failure to act, in good faith, by any such holder of the Senior Indebtedness, or any noncompliance by the Company with the terms, provisions and interest on covenants hereof, regardless of any knowledge thereof any holder of the Senior Indebtedness may have or be otherwise charged with. Without in any way limiting the generality of the foregoing, the holders of the Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Holder, without incurring responsibility to the Holder and without impairing or releasing the subordination provided in this Note as and when or the obligations hereunder of the Holder to the holders of the Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or create, renew or alter, the Senior Indebtedness, or otherwise amend or supplement in any manner the Senior Indebtedness or any instrument evidencing the same or any agreement under which the Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing the Senior Indebtedness; (iii) release any person liable or contingently liable in any manner for the payment or collection of the Senior Indebtedness; and/or (iv) exercise or refrain from exercising any rights against the Company or any other person.
(g) Each holder of any Senior Indebtedness, whether such Senior Indebtedness was created or acquired before or after the issuance of this Note, shall become due be entitled to rely on the subordination provisions set forth in this Note.
(h) Notwithstanding the provisions of this Section 6, the Holder shall not be charged with knowledge of the existence of facts which would prohibit the making of any payments on the Junior Indebtedness unless and payable until the holder(s) of the Senior Indebtedness or their representatives send written notice to Holder of same.
(i) Subject to the payment in accordance with full of all the terms hereof or Senior Indebtedness, Holder as holder of the Junior Indebtedness shall be subrogated to affect then relative the rights of the Lender and creditors holders of Borrower (other than the Senior Interest Holders)Indebtedness to receive payments or distributions of assets of the Company applicable to the Senior Indebtedness until the Senior Indebtedness shall be paid in full.
(j) The Holder shall confirm (in writing) the above subordination provisions if requested by any holder of the Senior Indebtedness, and shall execute and deliver such additional subordination agreements, consistent with the foregoing as any holder of Senior Indebtedness may require.
(k) For purposes hereof, “Senior Indebtedness” means, with respect to the Company and the Companies, all senior secured indebtedness of the Company and the Companies, whether outstanding on the date of the execution of this Note or thereafter created, to banks, insurance companies, other financial institutions, private equity funds, hedge funds or other similar funds.
Appears in 1 contract
Subordination. Borrower and, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, 11.1 The Subordinated ▇▇▇▇▇▇ for, collect, receive agrees with the Issuer that any amount owed to it by the Issuer hereunder or otherwise in connection herewith or in connection with any Transaction Document or any of the transactions contemplated hereby or thereby shall not become due and receipt for any payable unless and until all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect amounts required to be paid to any and all claims person identified or otherwise described in clause 21 (Order of Priority) of the Trust Agreement ranking prior to the payment of such amount to the Subordinated Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed discharged in full either by the Issuer or through payment of enforcement proceeds of the Purchased Receivables and in cash. In the event that related Ancillary Rights by the Lender receives any Security Trustee and (ii) payment or other distribution of any kind or character can be effected from Borrower a net profit (net income for the year plus profit carryforward)(Gewinn) or from other source whatsoeverfree assets in excess of liabilities (freies Vermögen) recorded in the commercial financial statements or from any liquidation surplus (Liquidationsüberschuss).
11.2 The Subordinated Lender hereby covenants with the Issuer that if, whether in respect the liquidation of the Issuer or upon the occurrence of an Enforcement Event or otherwise (and notwithstanding the provisions of this Noteclause 11 (Subordination)), other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions amount is received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders it in respect of the Senior Interests until the Senior Interests have been paid and performed in full Subordinated Loan or any interest thereon, other than pursuant to, and in cash. Upon payment in full accordance with, clause 21 (Order of Priority) of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)Trust Agreement, the Lender such amount shall be subrogated received and held by the Subordinated Lender as trustee (Treuhänder) for the Issuer and shall be paid over to the then existing rights of the Senior Interest Holders, if any. In accepting Issuer forthwith upon receipt; provided that this Note, the Lender agrees that clause 11.2 (iSubordination) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since effect only to the Final Payout Date shall have occurred; (iii) ifextent that it does not and is not deemed to constitute or create any mortgage, at any time, any payment (in whole charge or in part) other security interest of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder kind. Form of Subordinated Loan Advance Notice [Letterhead of Issuer] Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Blakelands ▇▇▇▇▇▇ Keynes MK14 5LR United Kingdom E-Mail: Fax: Date: Proposed Additional Borrowing Date (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (ivan Additional Purchase Date) the Lender waives: (x) notice Additional Subordinated Loan Increase Amount GBP Total outstanding Subordinated Loan after drawing of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders).additional Subordinated Loan Increase Amount
Appears in 1 contract
Sources: Subordinated Loan Agreement
Subordination. Borrower and, by its acceptance (a) At no time during the continuance of this Note, Lender hereby acknowledge and agree that any and all payments made Default or Event of Default shall any payment of any nature whatsoever due in respect of this Note are and the Subordinated Debt payable to any Guarantor be made after the Agent shall remain subordinate and junior in right have given notice to the Company (on behalf of payment all Borrowers) to all Aggregate Unpaids such effect.
(as defined in the Receivables Purchase Agreement hereinafter describedb) owed to Wachovia BankUpon any bankruptcy, National Associationinsolvency, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” liquidation or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as reorganization of December 21, 2009 by and among any Borrower, or upon the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated filing of a petition in bankruptcy or otherwise modified from time to time, the “Receivables Purchase Agreement”). commencement of any proceeding in bankruptcy against any Borrower shall, subject to the terms of this Section 3, have the right to pay all or upon any part distribution of the unpaid principal amount assets of this Note without premium any Borrower or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of upon any dissolution, winding up, liquidation, readjustment, liquidation or reorganization or other similar event relating to of any Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency insolvency, reorganization, arrangement or receivership proceedings, or upon an any assignment for the benefit of creditors, or any other marshaling marshalling of the assets and liabilities of Borrower either Borrower, or in the event any sale of all the Subordinated Debt shall for any reason become or substantially be declared due and payable or otherwise:
(i) the Agent shall first be entitled to receive Payment of all of the assets of Borrower Obligations (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash whenever arising) before the Lender any Guarantor shall be entitled to receive and any payment on account of the Subordinated Debt;
(ii) any payment by, or distribution of the assets of, any Borrower of any kind or character, whether in cash, property or securities, to retain which any Guarantor would be entitled except for the provisions of this Agreement, in connection with the Subordinated Debt, shall be paid or delivered by the Person making such payment or distribution (whether a trustee in bankruptcy, a receiver, custodian or liquidating trustee or otherwise) directly to the Agent to the extent necessary to make Payment of all of the Obligations remaining unpaid, after giving effect to any concurrent payment or distribution (or provision therefor) in cash to the Agent;
(iii) No Guarantor shall ask, demand by legal proceedings or otherwise, or take or receive from any Borrower, by set-off, counterclaim or in any other manner, any payment or distribution on account of the Subordinated Debt other than as expressly permitted hereunder; and
(iv) Each Guarantor agrees to declare the Subordinated Debt to be due and payable and, at least 30 days before the time required by applicable law or rule, to file proof of claim therefor, in respect default of which the Agent is hereby irrevocably authorized so to this Note. In declare and file in order to implement effectuate the provisions hereof. Notwithstanding the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment by, or other distribution of the assets of, any Borrower of any kind or character from Borrower prohibited hereby, whether in cash, property or from other source whatsoeversecurities, shall for any reason be received by any Guarantor in respect of this Note, other than as expressly permitted by the terms of this NoteSubordinated Debt, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (held in trust for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this NoteAgent, while any Bankruptcy Proceedings are pending the Lender and shall not be subrogated immediately paid over to the then existing rights Agent, to the extent necessary to make Payment of all of the Senior Interest Holders Obligations remaining unpaid, after giving effect to any concurrent payment or distribution (or provision therefor) in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated cash to the then existing rights of Agent.
(c) Without the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance prior written consent of the Administrative Agent, commenceno Borrower will give, and no Guarantor will receive or join with any other Person in commencingaccept, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) collateral of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made nature whatsoever for the benefit Subordinated Debt on any Property or assets, whether now existing or hereafter acquired, of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; any Borrower.
(vid) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note Agreement is intended to or shall impair, as between Borrowerand among the Borrowers, its their creditors (other than the Senior Interest Holdersholders of the Obligations) and any Guarantor, the Lender, Borrower’s obligation, which is unconditional and absolute, obligation of the Borrowers to pay make Payment to such Guarantor of any amount due in respect of the Lender the principal of and interest on this Note Subordinated Debt as and when the same shall become due and payable in accordance with the terms hereof thereof, or to affect then the relative rights of the Lender Guarantors and the creditors of Borrower the Borrowers (other than the Senior Interest Holdersholders of the Obligations), in each case subject to the rights of the holders of the Obligations under this Agreement.
(e) Unless and until Payment of all of the Obligations has occurred and the termination of the Credit Agreement, each Guarantor agrees not to declare any part of the Subordinated Debt to be due and payable or exercise any of the rights or remedies which it may have, or bring (in its capacity as holder of the Subordinated Debt), or join with any other creditor in instituting, any proceedings against any Borrower under any bankruptcy, insolvency, reorganization, arrangement, receivership or other similar law, unless the Obligations shall have been declared immediately due and payable or, in the case of the institution of any such proceedings, the Agent shall have joined in the institution thereof or expressly consented thereto in writing. In the event that the Agent shall have so declared the Obligations immediately due and payable, each Guarantor agrees to declare the Subordinated Debt then due to be due and payable, provided, however, if the Agent shall rescind any such declaration, each Guarantor shall automatically be deemed to have rescinded its declaration.
(f) No right of the Agent to enforce this Agreement shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of any Guarantor, or by any noncompliance by any Guarantor with the terms, provisions and covenants herein, and the Agent is hereby expressly authorized to extend, waive, renew, increase, decrease, modify or amend the terms of the Obligations or any collateral security therefor, and to waive any default, modify, amend, rescind or waive any provision of any document executed and delivered in connection with the Obligations and to release, sell or exchange any such collateral security and otherwise deal freely with the Borrowers, all without notice to or consent of any Guarantor and without affecting the liabilities and obligations of the parties hereto.
(g) Each Borrower and each Guarantor waives notice of acceptance of this Agreement by the Agent and the Lenders, and each Guarantor waives notice of and consents to the making, amount and terms of the Obligations which may exist from time to time and any renewal, extension, increase, amendment or modification thereof and any other action which the Agent or any Lender in its sole and absolute discretion, may take or omit to take with respect thereto. This section shall constitute a continuing offer to the Agent and the Lenders, its provisions are made for the benefit of the Agent and the Lenders, and the Agent and the Lenders are made obligees hereunder and may enforce such provisions.
(h) No Guarantor shall sell, assign, transfer or otherwise dispose of all or any part of the Subordinated Debt without having first obtained the prior written consent of the Agent.
(i) Each Borrower agrees that it will not make any payment of any of the Subordinated Debt, or take any other action, in contravention of the provisions of this Agreement.
(j) Each Guarantor agrees that the provisions of this Agreement shall be applicable to the Obligations whenever the same may arise and notwithstanding the fact that no Obligations may be outstanding from time to time and may have paid down to zero at any time or from time to time, it being understood that the Credit Agreement permits the Borrowers to borrow, repay and reborrow from time to time subject to the terms and conditions thereof, all or any of which terms and conditions may be waived.
(k) All rights and interests of the Agent hereunder, and all agreements and obligations of the Borrowers and the Guarantors under this Agreement, shall remain in full force and effect irrespective of (i) any lack of validity or enforceability of any of the Loan Documents; (ii) any change in the time, manner or place of payment of, or any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to departure from any of the Obligations; (iii) any exchange, release or non-perfection of the Collateral, or any release or amendment or waiver of or consent to or departure from any guaranty, for all or any of the Obligations; or (iv) any other circumstance which might otherwise constitute a defense available to, or a discharge of, any Borrower in respect of the Obligations or this Agreement. This Agreement shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations is rescinded or must otherwise be returned by the Agent upon the insolvency, bankruptcy or reorganization of any Borrower or otherwise, all as though such payment had not been made.
(l) Each Guarantor authorizes the Agent, without notice or demand and without affecting or impairing the obligations of any Guarantor, from time to time to (i) renew, compromise, extend, increase, accelerate or otherwise change the time for payment of, or otherwise change the terms of the Obligations, or any part thereof, including, without limitation, to increase or decrease the rate of interest thereon or the principal amount thereof; (ii) take or hold security for the payment of the Obligations and exchange, enforce, foreclose upon, waive and release any such security; (iii) apply such security and direct the order or manner of sale thereof as the Agent, in its sole discretion, may determine; (iv) release and substitute one or more endorsers, warrantors, borrowers or other obligors; and (v) exercise or refrain from exercising any rights against the Borrowers or any other Person.
Appears in 1 contract
Subordination. Borrower andAnything in this Indenture or the Securities of any series, or any Coupons appertaining thereto, to the contrary notwithstanding, the Indebtedness evidenced by its acceptance the Securities of this Note, Lender hereby acknowledge all series and agree that any and all payments made in respect of this Note are and Coupons appertaining thereto shall remain be subordinate and junior in right of payment in all respects to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part Indebtedness of the unpaid principal amount of this Note without premium or penalty Company, whether outstanding at any time; provided, that interest shall be paid on the amount repaid to and including the date of repaymentthis Indenture or incurred after the date of this Indenture. In Such Indebtedness of the Company to which the Securities and any Coupons appertaining thereto are subordinate and junior is sometimes herein referred to as "Superior Indebtedness". Without limiting the effect of the foregoing, "subordinate" and "junior" as used herein shall include within their meanings the following: that (i) in the event of any dissolutioninsolvency or bankruptcy proceedings, winding upand any receivership, liquidation, readjustment, reorganization or other similar proceedings in connection therewith, relative to the Company or its creditors or its property, and in the event relating to Borrowerof any proceedings for voluntary liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, not involving insolvency or receivership bankruptcy proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets then all principal and liabilities of Borrower or any sale of interest on all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Superior Indebtedness shall first be paid in full, or such payment be provided for, before any payment on account of principal or interest is made upon the Indebtedness evidenced by the Securities of any series and performed in full any Coupons appertaining thereto, and in cash before the Lender shall be entitled to receive and to retain any such proceedings any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender Securities of any series and any Coupons appertaining thereto shall be paid or otherwisedelivered directly to the holders of such Superior Indebtedness for application in payment thereof, may demand, ▇▇▇ for, collect, receive unless and receipt for any and all until such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests Superior Indebtedness shall have been paid and performed satisfied in full or such payment and satisfaction shall have been provided for; provided, however, that (x) in cash. In the event that the Lender receives any payment or other distribution delivery of such cash, property or securities to the Holders of the Securities of any kind series and to the Holders of any Coupons appertaining thereto is authorized by an order or character from Borrower decree giving effect, and stating in such order or from decree that effect is given, to the subordination of the Securities of all series and any Coupons appertaining thereto to Superior Indebtedness, and made by a court of competent jurisdiction in a reorganization proceeding under any applicable bankruptcy law, no payment or delivery of such cash, property or securities payable or deliverable with respect to the Securities of any series and any Coupons appertaining thereto need be made to the holders of Superior 105 95 Indebtedness; and (y) no such delivery need be made of securities which are issued pursuant to voluntary reorganization, dissolution or liquidation proceedings, or upon any merger, consolidation, sale, lease, transfer or other source whatsoever, in respect disposal not prohibited by Sec. 6.02 of this NoteIndenture, other than as expressly permitted by the terms Company, as reorganized, or by the New Company, and which securities are subordinate and junior to the payment of all Superior Indebtedness then outstanding; and (ii) in the event that pursuant to Article Eight of this Note, such payment or other distribution shall be received for Indenture the sole benefit Securities of any series are declared due and payable because of the Senior Interest Holders and shall be turned over by occurrence of any Event of Default described in Article Eight of this Indenture (under circumstances when the Lender to the Administrative Agent (for the benefit provisions of the Senior Interest Holdersforegoing clause (i) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated applicable), the Holders of Securities of such series and the Holders of any Coupons appertaining thereto, and the Trustee, on their behalf (but not with respect to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests its own compensation and expenses), shall be entitled to payment only after there shall first have been paid and performed in full the Superior Indebtedness outstanding at the time Securities of such series and any Coupons appertaining thereto so become due and payable because of such Event of Default, or such payment shall have been provided for. No present or future holder of Superior Indebtedness shall be prejudiced in cash. Upon payment in full his right to enforce subordination of the Aggregate Unpaids Securities of all series and termination any Coupons appertaining thereto by any act or failure to act on the part of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related SecurityCompany. The provisions set forth in of this Section 3 Article Fifteen are intended solely for the purpose of defining the relative rights of the Lender, holders of Superior Indebtedness on the one hand, and the Senior Interest Holders of the Securities of all series and the Holders of any Coupons appertaining thereto on the other hand. Nothing contained in this Note is intended to or , and nothing herein shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) Company and the LenderHolder of any Security of any series or of any Coupon appertaining thereto, Borrower’s obligationthe obligation of the Company, which is unconditional and absolute, to pay to the Lender Holder thereof the principal of principal, premium, if any, and interest on this Note as and when the same shall become due and payable interest, if any, thereon in accordance with its terms, nor shall anything herein prevent the terms hereof Holder of a Security of any series or to affect then relative rights of any Coupon appertaining thereto or the Trustee on behalf of the Lender and creditors Holders of Borrower (other than the Senior Interest Holders)Securities of all series or of any Coupons appertaining thereto from exercising all remedies otherwise permitted by applicable law or hereunder upon default hereunder, subject to the rights, if any, under this Article Fifteen of holders of Superior Indebtedness to receive cash, property or securities otherwise payable or deliverable to the Holders of the Securities of any series or of any Coupons appertaining thereto. Sec.
Appears in 1 contract
Subordination. Borrower and, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and The following provisions shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings only apply with respect to any and all claims of Guarantor party hereto that is not party to the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event Intercompany Subordination Agreement:
(a) Each Guarantor agrees that the Lender receives payment by the Borrower, any payment other Loan Party or other distribution any Obligor of any kind or character from Borrower or from other source whatsoever, indebtedness in respect favor of this Note, other than as expressly permitted by such Guarantor (the terms of this Note, such payment or other distribution “Subordinated Lender”) shall be received for the sole benefit of the Senior Interest Holders subordinated and shall be turned over by the Lender subject to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders prior indefeasible payment in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment cash in full of all amounts payable by the Aggregate Unpaids and termination of the commitments Borrower, such other Loan Party or such Obligor under the Receivables Purchase Credit Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting or this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstatedGuaranty, as the case may be, as though and any other Transaction Document to which the Borrower, such payment had not been made; other Loan Party or such Obligor is a party (iv“Senior Debt”) upon the terms of this Section.
(b) Upon any distribution of assets of the Borrower, a Loan Party or an Obligor to creditors upon a liquidation or dissolution of the Borrower, such Loan Party or such Obligor or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Borrower, such Loan Party or such Obligor or its property, (i) the Administrative Agent and the other Guaranteed Parties shall be entitled to receive payment in full of all Senior Debt before the Subordinated Lender waives: shall be entitled to receive any payment of principal of or interest on or any other amounts in respect of Indebtedness of the Borrower, such Loan Party or such Obligor in favor of the Subordinated Lender (xthe “Subordinated Debt”); and (ii) notice of acceptance of these provisions by any until indefeasible payment in cash in full of the Senior Interest Holders; (y) notice Debt and the lending commitments under the Credit Documents shall have terminated, any distribution of assets of any kind or character to which the existenceSubordinated Lender would otherwise be entitled shall be paid by the Borrower, creationsuch Loan Party or such Obligor or by any receiver, non-trustee in bankruptcy, liquidating trustee, agents or other person making such payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection ofdistribution to, or realization uponif received by the Borrower, the Senior Interestssuch Loan Party or such Obligor, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made shall be held for the benefit of and shall be forthwith paid or delivered to, the Senior Interest HoldersAdministrative Agent for distribution to the Administrative Agent and the other Guaranteed Parties, as applicable.
(c) If the Subordinated Lender does not file proper claims or proofs of claim in the form required in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Borrower, a Loan Party or an Obligor or its property prior to 45 days before the expiration of the time to file such claims, then (a) upon the request of the Administrative Agent, the Subordinated Lender shall file such claims and proofs of claim in respect of this instrument and execute and deliver such powers of attorney, assignments and other instruments as are required to enable the Administrative Agent and the other Guaranteed Parties to enforce any and all claims upon or in respect of the Subordinated Debt and to collect and receive any and all payments or distributions which may be payable or deliverable at any time upon or in respect of Subordinated Debt, and (b) whether or not the Subordinated Lender shall take the action described in the preceding clause (a) the Administrative Agent and the other Guaranteed Parties shall nevertheless be deemed to have such powers of attorney as may be necessary for them to file appropriate claims and proofs of claim and otherwise exercise the powers described above.
(d) No right of the Administrative Agent or the Purchaser may proceed any other Guaranteed Party to enforce such provisions on behalf the terms of each this Section shall be impaired by any act or failure to act by the Borrower, a Loan Party or an Obligor. Neither the terms of such Persons; this Section nor the rights of the Administrative Agent and the other Guaranteed Parties hereunder shall be affected by any extension, renewal or modification of the terms of, or the granting of any security in respect of, any Senior Debt or any exercise or nonexercise of any right, power or remedy with respect thereto.
(vie) Until the Senior Debt is paid in full and the lending commitments under the Credit Documents shall have terminated, the Subordinated Lender will shall not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off subrogation that it may have now or recoupment, or assert any counterclaim, against Borrower, in each case so long hereafter as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and a result of its performance of this Guaranty.
(viif) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth Nothing in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall (i) impair, as between the Borrower, its creditors (other than the Senior Interest Holders) such Loan Party or such Obligor and the Subordinated Lender, the obligation of the Borrower’s obligation, or such Loan Party or such Obligor, which is unconditional absolute and absoluteunconditional, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable Subordinated Debt in accordance with its terms; (ii) affect the terms hereof or to affect then relative rights of the Subordinated Lender and creditors of Borrower (the Borrower, or such Loan Party or such Obligor other than the Senior Interest Holders)Administrative Agent and the other Guaranteed Parties; or (iii) prevent the Subordinated Lender from exercising its available remedies upon an event of default under the Subordinated Debt, subject to the rights of the Administrative Agent and the other Guaranteed Parties to receive cash, property or other assets otherwise payable to the Subordinated Lender to the extent set forth in this Section.
Appears in 1 contract
Subordination. Borrower and, by its acceptance of this Note, Lender hereby acknowledge The Member irrevocably agrees that the Required Deposit and agree that any and all payments made in respect of this Note are and Patronage Dividend Certificates shall remain be subordinate and junior in right of payment to all Aggregate Unpaids (as defined the Financings in the Receivables Purchase Agreement hereinafter describedfollowing respects:
(a) Upon the occurrence of any Financing Default of which the Member has written notice (other than a Financing Default of the type described in Section 3(c)), the right of the Member to receive payments in respect of the Required Deposits shall be subject and subordinate to the payment of the outstanding amount under all Financings in full and in cash (including any interest that accrues following the commencement of any Insolvency Proceeding, whether or not such interest is allowable or enforceable against Company in such Insolvency Proceeding), and the Member will not assert any right to payment in respect of the Required Deposits unless and until either (a) 180 days have passed following such notice without Lenders in respect of the relevant Financing making demand for payment of the amounts owed to Wachovia Bankthem, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest only one such notice shall be paid on given pursuant to this clause (3)(a) in any 12 consecutive months, or (b) the repayment in full of the relevant Financing.
(b) Upon the occurrence of any Financing Default of which the Member has written notice (other than a Financing Default of the type described in Section 3(c)), the right of the Member to receive payments in respect of Patronage Dividend Certificates shall be subject and subordinate to the payment of the outstanding amount repaid under all Financings in full and in cash (including any interest that accrues following the commencement of any Insolvency Proceeding, whether or not such interest is allowable or enforceable against Company in such Insolvency Proceeding), and the Member will not assert any right to payment in respect of the Patronage Dividend Certificates unless and including until the date repayment in full of repayment. the relevant Financing.
(c) In the event of any dissolutiondefault in payment of any amount due under any Financing by Company or the occurrence of any Insolvency Proceedings relative to Company, winding up, liquidation, readjustment, reorganization the Lenders shall be entitled to receive payment in full of the outstanding obligations under all Financings (whether accrued prior or other similar event relating subsequent to Borrowerthe commencement of any Insolvency Proceeding, whether voluntary or involuntary, partial not such interest is allowable or complete, and whether enforceable against Company in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed Insolvency Proceeding) in full and in cash (including any interest that accrues following the commencement of any Insolvency Proceeding) before the Lender shall be Member is entitled to receive and to retain any payment or distribution in with respect to this Note. In order to implement the foregoingRequired Deposits or Patronage Dividend Certificates.
(d) The Member irrevocably authorizes and empowers each Lender (holding, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name with other Lenders of the Lender same class of Indebtedness, $10,000,000 or otherwise, may more of Financing) to demand, ▇▇▇ for, collectcollect and receive any such payment or distribution, receive and receipt for any and to file all such payments claims and take all such action, in the name of the Member or distributionsotherwise, as such holders of the Financings may determine to be necessary or appropriate for the enforcement of these subordination provisions, and filethe Member will also execute and deliver such instruments confirming such authorizations and such powers of attorney, prove proofs of claim, assignments of claim and vote or consent other instruments as may be requested by such holders of the Financings in any order to enable such Bankruptcy Proceedings with respect holders to enforce any and all claims upon or in respect of the Lender relating to this NoteRequired Deposits or Patronage Dividend Certificates.
(e) Upon any such Insolvency Proceedings or other winding up of the Company, in each case until any payment or distribution of assets of the Senior Interests shall have been paid and performed in full and Company of any kind or character, whether in cash. , property or securities or by set off or otherwise to which the Member would be entitled, except for the provisions hereof, shall be paid by the Company or for its account to the Lenders as in such order and priority as their interests may appear, to the extent necessary to pay all the Financings in full, after giving effect to any concurrent payment or distribution to the Lenders.
(f) In the event that the Lender receives any payment or other distribution of any kind is made to or character from Borrower or from other source whatsoever, received by the Member in respect of this Note, other than as expressly permitted by the terms Required Deposits or Patronage Dividend Certificates in contravention of this NoteSection, such payment or other distribution shall be received held in trust by the Member for the sole benefit of the Senior Interest Holders of, and shall be turned paid over by the Lender and delivered to, Lenders (in such order and priority as their interests shall appear) for application to the Administrative Agent payment of the obligations under the Financings.
(g) The Member shall not, following notice of any Financing Default, (i) commence any lawsuit or legal proceeding against the Company to collect the Required Deposit or Patronage Dividend Certificates or attempt to collect, levy upon or foreclose upon any property or assets of the Company in relation thereto, (ii) seek to attach any asset of the Company as security for the benefit Required Deposits or Patronage Dividend Certificates, or (iii) fail to make any required payment of its accounts payable to the Company when due by reason of the Senior Interest Holdersnon-payment of the Required Deposits or Patronage Dividend Certificates.
(h) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders The subordination provided herein shall be continuing in respect of this Notenature, while any Bankruptcy Proceedings are pending the Lender and shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions affected by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Insolvency Proceedings.
Appears in 1 contract
Sources: Member Subordination Agreement (Unified Grocers, Inc.)
Subordination. Borrower andSection 24.01. Provided that Tenant has received a commercially reasonable SNDA from such mortgagee or ground lessee, by its acceptance of as is applicable, this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are Lease is and shall remain be subject and subordinate and junior in right of payment all respects to all Aggregate Unpaids (as defined in underlying leases now or hereafter covering the Receivables Purchase Agreement hereinafter described) owed real property or any portion thereof of which the Premises form a part and to Wachovia Bankall mortgages and trust indentures which may now or hereafter be placed on or affect such leases and/or the real property of which the Premises form a part, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part or parts of the unpaid principal amount such real property, and/or Landlord's interest therein, and to each advance made and/or hereafter to be made under any such mortgages, or indentures, and to all renewals, modifications, consolidations, replacements and extensions thereof and all substitutions of this Note without premium and for such ground leases and/or underlying leases and/or mortgages or penalty at any time; provided, that interest indentures. This Section 24.01 shall be paid on self-operative and no further instrument of subordination shall be required. In confirmation of such subordination, Tenant shall execute, at its sole cost and expense, and deliver promptly any certificate or other document that Landlord and/or their respective successors in interest may reasonably request. Tenant agrees that, in the amount repaid event any proceedings are brought for the foreclosure of any mortgage or indenture referred to herein, to attorn to the purchaser upon any such foreclosure sale and including to recognize such purchaser as the date of repaymentlandlord under this Lease. In the event of the enforcement by any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling mortgagee of the assets and liabilities Building of Borrower remedies provided for by law or by such mortgage, any sale of all or substantially all person succeeding to the interest of the assets Landlord as the result of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest enforcement shall first not be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain bound by any payment of Fixed Rent or distribution Additional Rent for more than one month in respect advance not received by it. As a condition to the effectiveness of this Note. In order to implement Lease Landlord will obtain a Subordination Non-Disturbance Agreement (SNDA) from the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demandcurrent two mortgagees, ▇▇▇▇ for, collect, receive ▇▇▇▇▇▇▇ Life Insurance Company and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted WEA Associates by the terms of this Note, such payment or other distribution shall be received for Commencement Date in the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions form set forth in this Section 3 Exhibit D attached herewith. Landlord represents there are intended solely for currently no ground leases currently encumbering the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)real property.
Appears in 1 contract
Sources: Lease Agreement (Credit Suisse First Boston Usa Inc)
Subordination. Notwithstanding anything to the contrary in this Agreement, the Borrower and, by its acceptance of this Note, and Lender hereby acknowledge and agree that (i) the obligations evidenced under this Agreement and the Note and any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party claims related thereto (the “Purchasers” Subordinated Debt”) shall at all times be unconditionally subordinated to and inferior in right and in payment to all direct or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent indirect payments owing (including all Obligations (as defined therein)) to the Senior Agent and any Senior Lender under the Credit Agreement, dated November 22, 2022 (as such agreement may be amended, restated restated, supplemented or otherwise modified from time to time, the “Receivables Purchase Senior Credit Agreement”). Borrower shall, subject by and among the Borrower, NM EXT, L.L.C., a Delaware limited liability company, as a borrower, City National Bank, as agent (in such capacity, the “Senior Agent”) and a lender and the other lenders and counterparties from time to time party thereto (the terms “Senior Lenders”) and the other loan documents entered into in connection therewith, including but not limited to principal, interest (including, without limitation, interest as provided in the Senior Credit Agreement after the filing of this Section 3a petition initiating any proceeding referred to below), fees, expenses (including attorneys’ fees and expenses) or otherwise (such obligations being called the “Senior Obligations”), (ii) the Senior Obligations shall not be deemed to have been paid in full until and unless the right to pay all holders or any part owners of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest Senior Obligations shall be paid on the amount repaid to and including the date of repayment. In the event have received indefeasible payment thereof in full in cash (except in respect of any dissolutioncontingent obligation for which no claim has been made), winding upand all commitments shall have expired or been terminated, liquidation(iii) the Lender shall not ask for, readjustmentdemand, reorganization sue for, take or receive from the Borrower, directly or indirectly, in cash or other similar event relating to Borrowerproperty, whether voluntary by setoff or involuntaryin any other manner, partial or complete, and whether commence (or join with any other creditor in commencing) any proceeding against the Borrower (including any bankruptcy, insolvency or receivership proceedingssimilar proceeding) for, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale payment of all or substantially all any of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”)Subordinated Debt, the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain or accelerate all or any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name portion of the Lender or otherwiseSubordinated Debt, may demand, ▇▇▇ for, collect, receive unless and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests Obligations shall have been paid and performed in full and in cash. In the event that the Lender receives (other than any payment or other distribution of any kind or character from Borrower or from other source whatsoevercontingent obligation for which no claim has been made), in respect (iv) no term of this Note, other than as expressly permitted Agreement may be amended to the extent prohibited by the terms of this Note, such payment or other distribution shall be received for the sole benefit of Senior Credit Agreement and (v) the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (Agent, for the benefit of the Senior Interest Holders) forthwithLenders, shall be an express third party beneficiary of this Section 5. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated anything to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)contrary herein, the Lender shall be subrogated to Borrower may pay interest on the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until Subordinated Debt at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, all times as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)2 hereof.
Appears in 1 contract
Sources: Uncommitted Revolving Loan Agreement (New Mountain Net Lease Trust)
Subordination. Borrower andUpon payment by any Grantor of any Guaranteed Obligations, all rights of such Grantor against any other Grantor arising as a result thereof by its acceptance way of this Noteright of subrogation, Lender hereby acknowledge and agree that any and contribution, reimbursement, indemnity or otherwise shall in all payments made in respect of this Note are and shall remain respects be subordinate and junior in right of payment to all Aggregate Unpaids (as defined the prior payment in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors full in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as cash of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower Guaranteed Obligations (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt other than (i) contingent indemnification obligations for any and all such payments or distributionswhich a claim has not been asserted, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims (ii) Letters of the Lender relating to this Note, in each case until the Senior Interests shall Credit that have been paid Cash Collateralized or for which back-to-back letters of credit from an issuer acceptable to the L/C Issuer and performed in full and in cash. In on terms acceptable to the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, L/C Issuer have been provided in respect of this Notesuch Letters of Credit) and the termination of the Commitments. If any amount shall erroneously be paid to any Grantor on account of such subrogation, other than as expressly permitted by the terms of this Notecontribution, reimbursement, indemnity or similar right, such payment or other distribution amount shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (held in trust for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender Credit Parties and shall not forthwith be subrogated paid to the then existing rights Agent to be credited against the payment of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)Obligations, the Lender shall be subrogated to the then existing rights of the Senior Interest Holderswhether matured or unmatured, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or of this Agreement and the other Loan Documents. Subject to affect then relative rights the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Lender Obligations constituting Loans made to another Borrower hereunder or other Obligations incurred directly and creditors of primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other than Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the Senior Interest Holdersnumerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101 (32) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Grantor (other than, as to their respective Obligations, the Borrowers) hereunder and under the other Loan Documents shall in no event exceed the amount which can be guaranteed by such Grantor under applicable federal and state laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Guaranty and Security Agreement (Sears Hometown & Outlet Stores, Inc.)
Subordination. Borrower and, by its acceptance 5.1 The payment of any consideration under the Merger Agreement or this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are Amendment (the "Consideration") is and shall remain subordinate be subordinated and junior junior, in the manner hereinafter set forth, in right of payment to the prior payment in full of all Aggregate Unpaids obligations of Parent or Subsidiary (collectively, the "Obligors") with respect to present and future indebtedness, including interest, expenses and indemnities whether before or after the institution by or against the Obligors of proceedings under Title 11 of the United States Code, for borrowed money, letters of credit and interest rate protection products from banks, trust companies, finance companies, insurance companies, pension plans, mutual funds, venture capital firms and other private or public institutional lenders ("Senior Indebtedness"). The Merger Agreement and this Amendment are hereby subordinated as defined a claim against the Obligors of any of their assets, whether such claim is in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bankordinary course of business or in the event of any dissolution, National Associationliquidation, as Administrative Agent bankruptcy, receivership or reorganization of the Obligors (together with its successors in such capacitytogether, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”a "Reorganization"), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part prior payment in full of the unpaid principal amount Senior Indebtedness. Unless and until all Senior Indebtedness has been paid in full, no payment of this Note without premium or penalty at any timeConsideration shall be made; provided, however, that interest shall be paid on the amount repaid Obligors may pay -------- ------- Consideration when and as due so long as immediately after giving effect to such payment (a) the holders of Senior Indebtedness or their representative have not furnished the Shareholders with notice of an event of default that would permit holders of Senior Indebtedness to accelerate the maturity thereof and including the date (b) such event of repaymentdefault has not been waived or cured. In the event of any dissolutionReorganization, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Indebtedness shall first be paid and performed in full and in cash before any payment is made on account of the Lender Consideration, and the Shareholders authorize the holders of Senior Indebtedness to prove any claim on the Consideration in a Reorganization to such extent, and to take any other action necessary to effectuate the foregoing. If Consideration is paid to the Shareholders in violation of the foregoing provisions, such Consideration shall be entitled to receive and to retain any payment or distribution held by such holder in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (trust for the benefit of the holders of Senior Interest HoldersIndebtedness. So long as any Senior Indebtedness is outstanding and its maturity has not been accelerated, the Shareholders will not exercise any remedies, including commencing or joining in any proceeding seeking to effect a Reorganization; provided, however, that the Shareholders may exercise all such -------- ------- remedies if (I) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders an event of default in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights payment of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid Consideration has occurred and performed in full is continuing and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) either (A) the Lender shall notholders of Senior Indebtedness or their representative have not furnished the Shareholders with notice of an event of default that would permit holders of Senior Indebtedness to accelerate the maturity thereof or (B) if such a notice has bene furnished, without such event of default has not been waived or cured. The Shareholders covenant to execute and deliver such further instruments and to take such further action as the advance written consent Obligors or any holder of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, Senior Indebtedness may at any time, any payment (time reasonably request in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue order to be effective or shall be reinstated, as carry out the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance intent of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; subordination provisions. The Shareholders acknowledge and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and agree that these provisions are made for the benefit of the holders from time to time of Senior Interest Holders, Indebtedness and may be enforced by them against the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year Shareholders and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any holders of the assets of Borrower, including, without limitation, any Receivables or Related SecuritySenior Indebtedness have relied upon and will continue to rely upon these subordination provisions. The provisions set forth in this Section 3 are intended solely for the purpose Shareholders hereby waives notice or proof of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)reliance hereon.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Sba Communications Corp)
Subordination. 2.1 Guarantor, to the extent permitted by Section 4.08 of the Indenture, subordinates all present and future indebtedness other than the Mirror Notes (the "Related Indebtedness") owed by Borrower andto Guarantor and all liens, security interests, claims and rights of any kind (the "Related Liens") that Guarantor may now have or hereafter acquire against Borrower and/or Borrower's Property resulting from the Related Indebtedness (the Related Indebtedness and Related Liens are collectively the "Subordinated Indebtedness") shall, to the extent permitted by Section 4.08 of the Indenture, be subordinate, inferior and subject to the claims and rights of Lender against Borrower and/or Borrower's Property under the terms of any of the Receivables Loan Documents whether direct or contingent or whether now or hereafter created. Unless an Event of Default or Incipient Default has occurred and is continuing or will exist after giving effect to such payment, Guarantor may receive, accept and retain for its acceptance of this Note, Lender hereby acknowledge and agree that any and own account all payments made on the Subordinated Indebtedness.
2.2 Guarantor will not take any action which will either (a) force the sale or cause the foreclosure of Borrower's Property in respect order to satisfy the Subordinated Indebtedness or (b) affect in any manner any or all of Lender's liens, security interests, claims or rights of any kind that Lender may now have or hereafter acquire against Borrower and/or Borrower's Property. Guarantor will refrain from taking any action which is in any way inconsistent with or in derogation of this Note are subordination or of the rights of Lender hereunder and shall remain subordinate and junior in right covenants to perform such further acts as necessary or appropriate to give effect to this subordination. Without limiting the generality of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bankforegoing, National AssociationGuarantor will not assign any portion of the Subordinated Indebtedness, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, except expressly subject to the terms of this Section 3, have the right to pay Guarantee; and Guarantor shall cause all or any part evidence of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid Subordinated Indebtedness to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms provisions hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)bear a legend that it is subject hereto.
Appears in 1 contract
Sources: Corporate Guarantee and Subordination Agreement (Raintree Resorts International Inc)
Subordination. Borrower and(a) Except as otherwise specified, the Company agrees, and each Holder of the Notes by its acceptance of this Noteaccepting the Notes agrees, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior the indebtedness evidenced by the Notes is subordinated in right of payment payment, to all Aggregate Unpaids (as defined the extent and in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bankmanner provided in this Section 2.6, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms prior payment in full of this Section 3, have all Senior Indebtedness and that the right to pay all or any part subordination is for the benefit of the unpaid principal amount holders of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. Senior Indebtedness.
(b) In the event of (a) any dissolutioninsolvency or bankruptcy case or proceeding, winding upor any receivership, liquidation, readjustment, reorganization or other similar event relating case or proceeding in connection therewith, relative to Borrowerthe Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary, partial or complete, involuntary and whether in or not involving insolvency or bankruptcy, insolvency or receivership proceedings, or upon an (c) any assignment for the benefit of creditors, creditors or any other marshaling marshalling of the assets and liabilities of Borrower or any sale the Company:
(i) holders of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender Indebtedness shall be entitled to receive payment in full in cash of the principal thereof, premium, if any, additional amounts owing in respect thereof, if any, and interest (including interest accruing after the commencement of any such proceeding) to retain the date of payment on the Senior Indebtedness before Holders shall be entitled to receive any payment of principal of or interest on Notes;
(ii) until the Senior Indebtedness is paid in full in cash, any indebtedness to which Holders of the Notes or the Trustee would be entitled but for this Section 2.6 shall be made to holders of Senior Indebtedness as their interests may appear for the application to the payment thereof, except that Holders of the Notes may receive securities that are subordinated to Senior Indebtedness to at least the same extent as the Notes; and
(iii) the Trustee is entitled to conclusively rely upon an order or decree of a court of competent jurisdiction or a certificate of a bankruptcy trustee or other similar official for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of Senior Indebtedness and other Company debt, the amount thereof or payable thereon and all other pertinent facts relating to the Trustee’s obligations under this Section 2.6. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any of the Notes shall have received any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of assets of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution Company of any kind or character from Borrower character, whether in cash, property or from other source whatsoeversecurities, in respect including by way of this Note, other than as expressly permitted by the terms of this Note, set-off or any such payment or other distribution shall which may be received for the sole benefit payable or deliverable by reason of the Senior Interest Holders and shall be turned over by payment of any other indebtedness of the Lender Company being subordinated to the Administrative Agent (for the benefit payment of the Notes, before all Senior Interest Holders) forthwith. Notwithstanding any payments Indebtedness is paid in full or distributions received by the Senior Interest Holders in respect of this Notepayment thereof provided for, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated and if such fact shall, at or prior to the then existing rights time of such payment or distribution, have been made known to a Responsible Officer of the Senior Interest Holders Trustee in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstatedwriting or, as the case may be, as though such Holder of the Notes, then and in such event such payment had or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. Any taxes that have been withheld or deducted from any payment or distribution in respect of the Notes, or any taxes that ought to have been withheld or deducted from any such payment or distribution that have been remitted to the relevant taxing authority, shall not been made; (iv) be considered to be an amount that the Lender waives: (x) notice Trustee or the Holder of acceptance of these provisions by any of the Notes receives for purposes of this Section.
(c) The Company may not pay principal, premium, interest or additional amounts owing with respect to the Notes and may not acquire any Notes for cash or property other than capital stock of the Company if:
(i) (A) in the event and during the continuation of any default in the payment of principal, premium, if any, or interest on any Senior Interest Holders; Indebtedness beyond any applicable grace period with respect thereto or (yB) a default on Senior Indebtedness occurs and is continuing that permits holders of such Senior Indebtedness (or a trustee on their behalf) to accelerate its maturity, or
(ii) the default is the subject of judicial proceedings or the Company receives a notice of the existencedefault from a person who may give it pursuant to Section 2.6(l) hereof. The Company may resume payments on the Notes and may acquire them when:
(i) the default is cured or waiver; or
(ii) if this Section 2.6 otherwise permits the payments or acquisition at that time.
(d) In the event that any Notes are declared due and payable before their Stated Maturity Date, creationthen and in such event the holders of Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Indebtedness or provision shall be made for such payment in cash, non-before the Holders of the Notes are entitled to receive any payment (including any payment which may be payable by reason of the payment of any other indebtedness of the Company being subordinated to the payment of the Notes) by the Company on account of the principal of, premium, if any, additional amounts owing in respect thereof, if any or interest on the Notes or on account of the purchase or other acquisition of Notes; provided, that any money deposited pursuant to Article IV of the Base Indenture not in violation of the Indenture shall not be subject to the claims of holders of Senior Indebtedness. In the event that, notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Note prohibited by the foregoing provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to a Responsible Officer of the Trustee in writing or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Company.
(e) If payment or non-performance distribution on account of all the Notes of any character or security, whether in cash, securities or other property, is received by Holder, including any applicable Trustee, in contravention of any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder terms of this Note to Section 2.6 and before all Persons who become the holders ofSenior Indebtedness has been paid in full, such payment or who continue to hold, Senior Interests, and these provisions are made distribution or security will be received in trust for the benefit of, and must be paid over or delivered and transferred to, holders of Senior Indebtedness at the time outstanding in accordance with the priorities then existing among those holders of Senior Indebtedness for application to the payment of all Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior Indebtedness in full.
(f) The Company shall promptly notify the Trustee, in writing, and any Paying Agent of any facts known to the Company that would cause a payment on the Notes to violate this Section 2.6.
(g) After all Senior Indebtedness is paid in full and until the Notes are paid in full, Holders shall be subrogated to the rights of holders of Senior Indebtedness to receive payments or distributions applicable to Senior Indebtedness to the extent that distributions otherwise payable to the Holders have been applied to the payment of Senior Indebtedness. A payment or distribution made under this Section 2.6 to holders of Senior Indebtedness which otherwise would have been made to Holders is not, as among the Company, its creditors other than the holders of Senior Indebtedness and Holders, a payment or distribution by the Company on account of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; Indebtedness.
(vih) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this This Section 3 are 2.6 is intended solely for the purpose of defining to define the relative rights of the Lender, Holders on the one hand, hand and the holders of Senior Interest Holders Indebtedness on the other hand. Nothing contained in this Note is intended to the Indenture or shall in the Notes shall:
(i) impair, as between Borroweramong the Company, its creditors (other than the holders of Senior Interest Holders) Indebtedness and the LenderHolders of the Notes, Borrower’s obligationthe obligation of the Company, which is unconditional absolute and absoluteunconditional, to pay to the Lender Holders of the Notes the principal of of, premium, if any, additional amounts in respect thereof, if any, and interest on this Note the Notes as and when the same shall become due and payable in accordance with their terms;
(ii) affect the terms hereof or to affect then relative rights of the Lender Holders and creditors of Borrower the Company other than holders of Senior Indebtedness; or
(iii) prevent the Trustee or any Holder from exercising its available remedies upon an Event of Default, subject to the rights of holders of Senior Indebtedness to receive payments or distributions otherwise payable to Holders or the Trustee. If the Company fails because of this Section 2.6 to pay principal, premium, if any, additional amounts in respect thereof, if any, or interest on any of the Notes on the due date, such failure shall constitute a default hereunder.
(i) No right of any holder of Senior Indebtedness to enforce the subordination of the indebtedness evidenced by the Notes shall be impaired by any act or failure to act by the Company or by its failure to comply with the Indenture.
(j) Whenever a distribution is to be made or a notice given to holders of Senior Indebtedness, the distribution may be made and the notice given to their Representative.
(k) The Trustee or any Paying Agent may continue to make payments on the Notes until it receives written notice of facts that would cause a payment of principal of or interest on the Notes to violate this Section 2.6. Only the Company, a Representative or a holder of an issue of Senior Indebtedness that has no Representative may give the written notice. The Trustee has no fiduciary duty to the holders of Senior Indebtedness other than as created under this Indenture. The Trustee in its individual or any other capacity may hold Senior Indebtedness with the same rights it would have if it were not Trustee. Notwithstanding anything herein to the contrary, the Company’s obligation to pay, and the Company’s payment of, the amounts required by Section 6.07 of the Base Indenture are excluded from the operation of this Section 2.6. For the sake of clarity, such payments are not subordinated to the Company’s Senior Indebtedness.
(l) Nothing contained in this Section 2.6 or elsewhere in the Indenture or in any of the Notes shall prevent (a) the Company, at any time except during the pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshalling of assets and liabilities of the Company referred to in Section 2.6(b) hereof or under the conditions described in Section 2.6(c) or 2.6(d) hereof, from making payments at any time of or on account of the principal of, premium, if any, additional amounts owing in respect thereof, if any or interest on the Notes or on account of the purchase or other acquisition of the Notes, or (b) the application by the Trustee of any money deposited with it hereunder to the payment of or on account of the principal of, premium, if any, additional amounts owing in respect thereof, if any, or interest on the Notes or the retention of such payment by the Holders, if, at the time of such application by the Trustee, it did not have knowledge (in accordance with Section 2.6(f) hereof) that such payment would have been prohibited by the provisions of this Section 2.6.
(m) Each Holder of a Note by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Section 2.6 and appoints the Trustee his attorney-in-fact for any and all such purposes.
(n) Upon any payment or distribution of assets of the Company referred to in this Section 2.6, the Trustee, subject to the provisions of Section 6.02 of the Base Indenture, and the Holders of the Notes shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of the Notes, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 2.6.
(o) In case at any time any Paying Agent other than the Senior Interest Holders)Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Section 2.6 shall in such case (unless the context otherwise requires) be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying Agent were named in this Section 2.6 in addition to or in place of the Trustee.
Appears in 1 contract
Sources: First Supplemental Indenture (Lakeland Bancorp Inc)
Subordination. Borrower and, by its acceptance For purposes of this NoteNote and specifically this Section 3 hereof, Lender hereby acknowledge the term "SUPERIOR BANK INDEBTEDNESS" shall be defined as follows: The principal of, and agree that any accrued and all payments made unpaid interest on (a) indebtedness of the Maker incurred in the ordinary course of business for money borrowed or in respect of letters of credit issued for its own account, to (i) any bank or trust company organized under the laws of the United States or any state or (ii) any savings and loan association; (b) obligations of the Maker incurred pursuant to agreements to factor the accounts receivable of the Maker; (c) purchase money obligations entered into in the ordinary course of business, evidenced by notes, lease-purchase agreements, purchase contracts or agreements, or similar instruments for the payment of which the Maker is responsible or liable, by guarantees or otherwise; (d) obligations of the Maker incurred in the ordinary course of business under any agreement to lease, or lease of, any real or personal property which are required to be capitalized in accordance with generally accepted accounting principles, or any other agreement to lease, or lease of, any real or personal property for the benefit of the Maker which, by the terms thereof, are expressly designated as Superior Bank Indebtedness; and (e) any modification, renewal, extension or refunding of any such indebtedness, guarantee or obligation; in every case, whether such indebtedness, guarantee or obligation, or such modification, renewal, extension or refunding thereof, was outstanding on the date of execution of this Note are and shall remain subordinate and junior or thereafter created, incurred or assumed; unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such indebtedness, guarantee or obligation, or such modification, renewal, extension or refunding thereof, is not superior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia BankNotes. The Maker agrees, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative AgentNoteholder of the Note issued hereunder by its acceptance thereof likewise agrees, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, that the “Receivables Purchase Agreement”). Borrower shall, Note shall be issued subject to the terms provisions of this Section 3, have each person holding any Note, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions. This Note issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated and subject in right of payment or satisfaction to pay all or any part the prior payment of Superior Bank Indebtedness. Subject to the payment of Superior Bank Indebtedness as provided above and subject to applicable law, the rights of the unpaid Noteholder shall be appropriately subrogated to the rights of the holders of Superior Bank Indebtedness to receive payments or distributions of cash, property or securities of the Maker to the extent applicable to the Superior Bank Indebtedness until the principal amount of this Note without premium or penalty at any time; providedof, that and premium, if any, and interest on the Notes shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolutionin full; and, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit purposes of creditorssuch subrogation, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any no payments or distributions received by to the Senior Interest holders of the Superior Bank Indebtedness of any cash, property or securities to which the Holders in respect of the Notes would be entitled except for the provisions of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cashSection 2. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest It is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees understood that the obligations represented by this Note are not secured by any interest in any provisions of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are and are intended solely for the purpose of defining the relative rights of the LenderNoteholder, on the one hand, and the Senior Interest Holders holders of the Superior Bank Indebtedness, on the other hand. Nothing contained in The subordination of this Note is intended to Superior Bank Indebtedness will in no way limit or shall impair, modify the Noteholder's rights under the amended Personal Guaranty as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable set forth in accordance with the terms hereof or to affect then relative rights Section 2.3 of the Lender Note and creditors of Borrower (other than the Senior Interest Holders)Warrant Agreement.
Appears in 1 contract
Subordination. Borrower and, by its acceptance Each Trustee on behalf of this Note, Lender itself and the other Subordinated Parties hereby acknowledge and agree agrees that any and all payments made in respect of this Note are and the Subordinated Obligations shall remain be subordinate and junior in right of payment to all Aggregate Unpaids the (as defined in the Receivables Purchase Agreement hereinafter describedi) owed to Wachovia Bank, National Association, as Administrative Agent Obligations of each Specified Subsidiary Guarantor (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers whether now existing or from time to time party thereto after the date hereof incurred, assumed, created or arising) and (the “Purchasers” ii) Permitted Guaranteed Bilateral Letter of Credit Facilities with a US Lender or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent an affiliate thereof (as amended, restated whether now existing or otherwise modified from time to timetime after the date hereof incurred, the “Receivables Purchase Agreement”assumed, created or arising). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date payment of repayment. In the event of any dissolutionprincipal, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower premium (such proceedings being herein collectively called “Bankruptcy Proceedings”if any), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent interest (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, interest accruing on or after the filing of any Receivables Insolvency Proceeding, whether or Related Security. The provisions set forth not a claim for post-filing interest is allowed or allowable in this Section 3 are intended solely for the purpose of defining the relative rights any such Insolvency Proceeding), fees, charges, expenses, indemnities, reimbursement obligations and all other amounts payable thereunder or in respect thereof, in each case whether or not any of the Lenderforegoing is allowed or allowable as a claim in any Insolvency Proceeding (collectively, the “Senior Obligations”). For purposes hereof, “Subordinated Obligations” means all obligations of the Specified Subsidiary Guarantors to the Subordinated Parties (whether now existing or from time to time after the date hereof incurred, assumed, created or arising) under each Indenture, including each Subsidiary Notes Guarantee, including, in each case to the extent constituting obligations thereunder, the payment of principal, premium (if any), interest (including, without limitation, interest accruing on or after the one handfiling of any Insolvency Proceeding pursuant to the terms of the Indenture, whether or not a claim for post-filing interest is allowed or allowable in any such Insolvency Proceeding), fees, charges, expenses, indemnities, reimbursement obligations and all other amounts payable thereunder or in respect thereof, in each case whether or not any of the foregoing is allowed or allowable as a claim in any Insolvency Proceeding. For purposes hereof, “Discharge of the Senior Interest Holders on Obligations” shall mean that the other hand. Nothing contained Senior Obligations have been indefeasibly paid in this Note is intended to or shall impair, as between Borrower, its creditors full in cash and all commitments of the Senior Parties under the Loan Documents have been terminated (other than the Senior Interest Holdersany inchoate obligations for which no claim has been asserted). (b) The Obligors, each Trustee and the Lenderother Subordinated Parties agree that no payment (whether directly, Borrower’s obligationby purchase, which is unconditional and absolute, to pay the Lender the principal redemption or exercise of and interest on this Note as and when the same shall become due and payable any right of setoff or otherwise) in accordance with the terms hereof or to affect then relative rights respect of the Lender Subordinated Obligations, whether as principal, interest or otherwise, and creditors whether in cash, securities or other property, shall be made by or on behalf of Borrower any Specified Subsidiary Guarantor or received, accepted or demanded from or on behalf of any Specified Subsidiary Guarantor, directly or indirectly, by or on behalf of any Subordinated Party (other than a payment or distribution in the form of debt or equity securities that are subordinated to the Senior Interest Holders).Obligations at least to the same extent as the Subordinated Obligations (“Permitted Junior 2
Appears in 1 contract
Subordination. Borrower and, by its acceptance (i) Each of this Note, Lender hereby acknowledge the Sellers and agree Buyer acknowledges that any the Contingent Payment and all payments made the obligations in respect of this Note are the Guaranty and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers amounts from time to time to be paid to the Sellers hereunder or thereunder (including, without limitation, any premium, fees, interest and expenses that accrue or are payable (or that would accrue and be payable but for such case, proceeding or other action) after the commencement of any case, proceeding or other action relating to the bankruptcy, insolvency or reorganization of the Buyer and/or its subsidiaries (whether or not such fees, interest or expenses are allowed or allowable as a claim in such case, proceeding or other action), the “Subordinated Debt”) are and shall continue to be unsecured and fully subordinated and junior in all respects to the obligations and indebtedness under the senior secured credit facility in the original principal amount of $320,000,000 that will be entered into by the reorganized Buyer and certain of its affiliates, the agents and lenders party thereto (on the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent Effective Date (as such facility is amended, restated restated, waived, supplemented, extended, modified, increased, replaced or otherwise modified refinanced, with or without notice to Sellers, from time to time, the “Receivables Confirmation Facility”).
(ii) Buyer shall not make, and shall not permit any of its subsidiaries to make, and Sellers shall not demand, accept or receive, any payment in respect of the Subordinated Debt if either immediately before such payment or immediately after giving effect to such payment, an “Event of Default” under and as defined in the Confirmation Facility shall exist.
(iii) Unless and until all Confirmation Facility Debt (as defined below) has been Paid in Full (as defined below), the Sellers shall not join with any creditor in commencing any proceeding under any insolvency, bankruptcy, receivership, liquidation, reorganization or other similar law, unless the collateral agent under the Confirmation Facility shall also join in bringing such proceeding; provided that, the foregoing shall not prohibit the Sellers from filing a proof of claim in any such proceeding not commenced by the Sellers.
(iv) In the event of any insolvency proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Buyer or any of its subsidiaries or to their creditors, in their capacity as creditors of the Buyer or any of its subsidiaries, or to substantially all of their property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding up of the Buyer or any of its subsidiaries, whether or not involving insolvency or bankruptcy, then:
(A) the holders of the Confirmation Facility Debt shall first be Paid in Full before the Sellers would be entitled to receive any payment on account or in respect of the Subordinated Debt;
(B) any payment or distribution of assets of the Buyer or any of its subsidiaries of any kind or character, whether in cash, property or securities to which the Sellers are entitled under the terms of the Purchase Agreement”, but for the provisions of this Section 2.3(h). Borrower shall, subject shall be paid or distributed by the liquidating trustee or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or other trustee or agent, directly to the administrative agent under the Confirmation Facility to be applied to the Confirmation Facility Debt in accordance with the terms of the Confirmation Facility to the extent necessary to result in the Confirmation Facility Debt being Paid in Full;
(v) Should any payment or distribution or security or the proceeds of any thereof be collected or received by the Sellers in respect of the Subordinated Debt, at a time when the payment thereof by the Buyer or any of its subsidiaries is prohibited by the terms of this Section 32.3(h), have the right Sellers shall forthwith deliver the same to pay the administrative agent under the Confirmation Facility in precisely the form received (except for the endorsement or the assignment of or by the Sellers where necessary) for application to payment of all Confirmation Facility Debt in accordance with the terms of the Confirmation Facility until the Confirmation Facility Debt is Paid in Full, and, until so delivered, the same shall be held in trust by the Sellers as the property of the holders of the Confirmation Facility Debt.
(vi) The Sellers agree that, in the event that all or any part of any payment made on account of the unpaid principal amount Confirmation Facility Debt is recovered from the holders of this Note without premium Confirmation Facility Debt as a preference, fraudulent transfer or penalty at similar payment under any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedingssimilar law, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement received by the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name Sellers on account of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for Subordinated Debt at any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims time after the date of the Lender relating payment so recovered shall be deemed to this Note, in each case until the Senior Interests shall have been paid received by the Sellers in trust as the property of the holders of the Confirmation Facility Debt and performed the Sellers shall forthwith deliver the same to the administrative agent under the Confirmation Facility to be applied to the Confirmation Facility Debt in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by accordance with the terms of this Note, such payment the Confirmation Facility until the Confirmation Facility Debt is Paid in Full.
(vii) The Sellers acknowledge and agree that the holders of the Confirmation Facility Debt have relied upon and shall continue to rely upon the subordination provided for herein in entering into the agreements relating to Confirmation Facility Debt and in extending credit to the Buyer or any of its subsidiaries pursuant thereto.
(viii) Any assignment or other distribution transfer by the Sellers or Buyer or any of it subsidiaries of their rights or obligations under this Agreement or the Guaranty shall be received for the sole benefit made expressly subject to this Section 2.3(h), and each assignment in contravention of the Senior Interest Holders and this Section 2.3(h)(viii) shall be turned over by the Lender to the Administrative Agent null and void.
(ix) The subordination provisions contained herein are solely for the benefit of the Senior Interest Holdersholders of the Confirmation Facility Debt from time to time and, so long as the Confirmation Facility Debt has not been Paid in Full, this Section 2.3(h) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall may not be subrogated to rescinded, cancelled, modified or amended in any way without the then existing rights prior written consent thereto of the Senior Interest Holders in respect collateral agent and administrative agent under the Confirmation Facility. No other party, including any creditor or equity holder of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)Debtors, the Lender shall be subrogated is entitled to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such subordination provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth contained in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained 2.3(h).
(x) The following terms used in this Note is intended to or Section 2.3(h) shall impair, as between Borrower, its creditors (other than have the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders).respective meanings indicated below:
Appears in 1 contract
Sources: Interest Purchase Agreement (Oglebay Norton Co /Ohio/)
Subordination. Borrower and, by its acceptance For purposes of this NoteDebenture and specifically this Section 2 hereof, Lender hereby acknowledge the term "SUPERIOR BANK INDEBTEDNESS" shall be defined as follows: The principal of, and agree that any accrued and all payments made unpaid interest on (a) indebtedness of the Company incurred in the ordinary course of business for money borrowed or in respect of letters of credit issued for its own account, to (i) any bank or trust company organized under the laws of the United States or any state or (ii) any savings and loan association; (b) obligations of the Company incurred pursuant to agreements to factor the accounts receivable of the Company; (c) purchase money obligations entered into in the ordinary course of business, evidenced by notes, lease-purchase agreements, purchase contracts or agreements, or similar instruments for the payment of which the Company is responsible or liable, by guarantees or otherwise; (d) obligations of the Company incurred in the ordinary course of business under any agreement to lease, or lease of, any real or personal property which are required to be capitalized in accordance with generally accepted accounting principles, or any other agreement to lease, or lease of, any real or personal property for the benefit of the Company which, by the terms thereof, are expressly designated as Superior Bank Indebtedness; and (e) any modification, renewal, extension or refunding of any such indebtedness, guarantee or obligation; in every case, whether such indebtedness, guarantee or obligation, or such modification, renewal, extension or refunding thereof, was outstanding on the date of execution of this Note are and shall remain subordinate and junior Debenture or thereafter created, incurred or assumed; unless, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such indebtedness, guarantee or obligation, or such modification, renewal, extension or refunding thereof, is not superior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia BankDebenture. The Company agrees, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative AgentHolder of the Debenture issued hereunder by its acceptance thereof likewise agrees, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, that the “Receivables Purchase Agreement”). Borrower shall, Debenture shall be issued subject to the terms provisions of this Section 32, have each person holding any Debenture, whether upon original issue or upon transfer or assignment thereof, accepts and agrees to be bound by such provisions. This ▇▇▇▇▇▇▇▇▇ issued hereunder shall, to the extent and in the manner hereinafter set forth, be subordinated and subject in right of payment or satisfaction to pay all or any part the prior payment of Superior Bank Indebtedness. Subject to the payment of Superior Bank Indebtedness as provided above and subject to applicable law, the rights of the unpaid Holder shall be appropriately subrogated to the rights of the holders of Superior Bank Indebtedness to receive payments or distributions of cash, property or securities of the Company to the extent applicable to the Superior Bank Indebtedness until the principal amount of this Note without premium or penalty at any time; providedof, that interest and premium, if any, and Interest on the Debenture shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolutionin full; and, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit purposes of creditorssuch subrogation, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any no payments or distributions received by to the Senior Interest Holders in respect holders of the Superior Bank Indebtedness of any cash, property or securities to which the Holder of the Debenture would be entitled except for the provisions of this Note, while any Bankruptcy Proceedings are pending Section 2. It is understood that the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, Section 2 are and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the LenderHolder, on the one hand, and the Senior Interest Holders holders of the Superior Bank Indebtedness, on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders).
Appears in 1 contract
Subordination. Borrower and(a) All claims of the Holder to principal, interest and any other amounts at any time owed under this Note (collectively, “Junior Indebtedness”) is hereby expressly subordinated in right of payment, as herein set forth, to the prior payment in full of all Senior Indebtedness (as defined below). No payment under Junior Indebtedness shall be made by its acceptance the Company, nor shall the Holder exercise any remedies under the Junior Indebtedness (including taking any legal action (whether judicial or otherwise) to collect the Junior Indebtedness), if, at the time of such payment, exercise or immediately after giving effect thereto, (i) there shall exist any material “Default” or “Event of Default” under any agreements governing any of the Senior Indebtedness or (ii) the maturity of any of the Senior Indebtedness has been accelerated and (A) such acceleration has not been waived or (B) such Senior Indebtedness has not been paid in full; provided, however, that (x) in the event that the holder of any Senior Indebtedness accelerates such Senior Indebtedness, then the Holder may accelerate the indebtedness evidenced by this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in y) if the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to Company is permitted under the terms of this Section 3, have the right Senior Indebtedness to pay all or any part an amount due and owing under this Note and fails to make such payment, then so long as the terms of the unpaid principal amount of this Note without premium or penalty at any time; providedSenior Indebtedness do not prohibit such action, that interest shall the Holder may exercise its rights to be paid on such amount, but only such amount (and Holder shall not be permitted to accelerate hereunder).
(b) Upon any payment or distribution of assets of the amount repaid to and including the date of repayment. In the event Company of any dissolutionkind or character, whether in cash, property or securities, to creditors upon any dissolution or winding up, liquidation, readjustment, up or total or partial liquidation or reorganization or other similar event relating to Borrowerof the Company, whether voluntary or involuntary, partial involuntary or complete, and whether in bankruptcy, insolvency insolvency, receivership or receivership other proceedings, or upon an assignment for the benefit of creditors, or any other marshaling all Senior Indebtedness of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Company shall first be paid and performed in full and full, or payment thereof provided for in cash money, before the Lender shall be entitled to receive and to retain any payment is made under Junior Indebtedness; and upon any such dissolution or winding up or liquidation or reorganization, any distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of assets of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution Company of any kind or character from Borrower character, whether in cash, property or from other source whatsoeversecurities, in respect to which the Holder as holder of this Notethe Junior Indebtedness would be entitled except for the provisions hereof, other than as expressly permitted shall be paid by the terms of this NoteCompany or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or other distribution shall be distribution, or by the Holder if received for by ▇▇▇▇▇▇, directly to the sole benefit holder of the Senior Interest Holders and shall be turned over by the Lender Indebtedness, or its representatives, to the Administrative Agent (extent necessary to pay all such Senior Indebtedness in full, in money, after giving effect to any concurrent prepayment or distribution to or for the benefit of the holders of such Senior Interest HoldersIndebtedness, before any payment or distribution is made to the Holder with respect to the Junior Indebtedness.
(c) forthwith. Notwithstanding If the holders of the Senior Indebtedness in good faith believe Holder may fail to timely file a proof of claim in any payments such proceeding, the holder(s) of the Senior Indebtedness may do so for Holder.
(d) In the event that any payment or distributions distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing where the holder has actual knowledge of a Senior Indebtedness payment default shall be received by the Holder before all the Senior Interest Holders Indebtedness is paid in respect of this Notefull, while any Bankruptcy Proceedings are pending or provisions made for such payment, in accordance with its terms, such payment or distribution shall be held for the Lender benefit of, and shall not be subrogated to paid over or delivered to, the then existing rights holders of the Senior Interest Holders in respect Indebtedness or their representative or representatives, as their respective interests may appear, for application to the payment of all the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated Indebtedness remaining unpaid to the then existing rights of the extent necessary to pay all such Senior Interest HoldersIndebtedness in full, if any. In accepting this Notein money, the Lender agrees that (i) the Lender shall notin accordance with its terms, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings after giving effect to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-concurrent payment or non-performance of all distribution to or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become for the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; Senior Indebtedness.
(vie) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 hereof are intended solely for the purpose of defining the relative rights of the Lender, holders of the Senior Indebtedness on the one hand, hand and the Senior Interest Holders Holder as holder of the Junior Indebtedness on the other hand. Nothing contained in this Note is intended to or , and nothing herein shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) Company and the LenderHolder, Borrower’s obligationthe obligations of the Company under the Junior Indebtedness, which is are unconditional and absolute. With this in mind, notwithstanding the other provisions of this Section 7, if and so long as all documents governing the Senior Indebtedness permit one of the actions restricted by this Section 7, the restriction shall be waived and the restricted action permitted hereunder.
(f) No right of any present or future holder of any Senior Indebtedness to pay enforce the Lender subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the principal part of the Company or any act or failure to act, in good faith, by any such holder of the Senior Indebtedness, or any noncompliance by the Company with the terms, provisions and interest on covenants hereof, regardless of any knowledge thereof any holder of the Senior Indebtedness may have or be otherwise charged with. Without in any way limiting the generality of the foregoing, the holders of the Senior Indebtedness may, at any time and from time to time, without the consent of or notice to the Holder, without incurring responsibility to the Holder and without impairing or releasing the subordination provided in this Note as and when or the obligations hereunder of the Holder to the holders of the Senior Indebtedness, do any one or more of the following: (i) change the manner, place or terms of payment or extend the time of payment of, or create, renew or alter, the Senior Indebtedness, or otherwise amend or supplement in any manner the Senior Indebtedness or any instrument evidencing the same or any agreement under which the Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing the Senior Indebtedness; (iii) release any person liable or contingently liable in any manner for the payment or collection of the Senior Indebtedness; and/or (iv) exercise or refrain from exercising any rights against the Company or any other person.
(g) Each holder of any Senior Indebtedness, whether such Senior Indebtedness was created or acquired before or after the issuance of this Note, shall become due be entitled to rely on the subordination provisions set forth in this Note.
(h) Notwithstanding the provisions of this Section 7, the Holder shall not be charged with knowledge of the existence of facts which would prohibit the making of any payments on the Junior Indebtedness unless and payable until the holder(s) of the Senior Indebtedness or their representatives send written notice to Holder of same.
(i) Subject to the payment in accordance with full of all the terms hereof or Senior Indebtedness, Holder as holder of the Junior Indebtedness shall be subrogated to affect then relative the rights of the Lender and creditors holders of Borrower (other than the Senior Interest Holders)Indebtedness to receive payments or distributions of assets of the Company applicable to the Senior Indebtedness until the Senior Indebtedness shall be paid in full.
(j) The Holder shall confirm (in writing) the above subordination provisions if requested by any holder of the Senior Indebtedness, and shall execute and deliver such additional subordination agreements, consistent with the foregoing as any holder of Senior Indebtedness may require.
(k) For purposes hereof, “Senior Indebtedness” means, with respect to the Company, all senior secured indebtedness of the Company, whether outstanding on the date of the execution of this Note or thereafter created, to banks, insurance companies, other financial institutions, private equity funds, hedge funds or other similar funds.
Appears in 1 contract
Sources: 5% Secured Subordinated Convertible Promissory Note (Smart for Life, Inc.)
Subordination. Borrower andAnything in this Agreement to the contrary notwithstanding, the indebtedness evidenced by its acceptance the Notes, including principal, Yield Maintenance Amount, if any, and interest, shall be subordinate and junior to the extent set forth in subparagraphs (i) to (v), inclusive, below, to all Senior Debt.
(i) If the Company shall default in the payment of this Noteany principal of or interest on any Senior Debt in an amount in excess of $750,000 owing under any single instrument when the same becomes due and payable, Lender hereby acknowledge whether at maturity or at a date fixed for prepayment or by declaration of acceleration or otherwise, then, unless and agree that until such default shall have been remedied by payment in full or waived, no holder of the Notes shall accept or receive any and all payments made direct or indirect payment of or on account of any indebtedness in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids the Notes.
(as defined in the Receivables Purchase Agreement hereinafter describedii) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolutioninsolvency, winding upbankruptcy, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment any receivership proceedings in connection therewith, relative to the Company, and in the event of any proceedings for the benefit of creditorsvoluntary liquidation, dissolution or any other marshaling winding up of the assets and liabilities of Borrower Company, whether or any sale of not involving insolvency or bankruptcy proceedings, then all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Debt shall first be paid and performed in full and before any payment of or on account of principal, Yield Maintenance Amount, if any, or interest is made by the Company upon the Notes.
(iii) In any of the proceedings referred to in cash before the Lender shall be entitled to receive and to retain subparagraph (ii) above, any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower characters whether in cash, property, stock or from other source whatsoeverobligations, which may be payable or deliverable by the Company in respect of the Notes shall be paid or delivered directly to the holders of Senior Debt (or to a banking institution selected by the court or Person making the payment or delivery or designated by any holder of Senior Debt) for application in payment thereof in accordance with the priorities then existing among such holders, unless and until all Senior Debt shall have been paid in full PROVIDED, HOWEVER, that
(a) if the payment or delivery by the Company of such cash, property, stock or obligations to the holders of the Notes is authorized by an order or decree giving effect, and stating in such order or decree that effect is given, to the subordination of the Notes to Senior Debt, and made in a reorganization proceeding under any applicable bankruptcy or reorganization law, no payment or delivery by the Company of such cash, property, stock or obligations payable or deliverable with respect to the Notes shall be made to the holders of Senior Debt; and
(b) no such delivery shall be made to holders of Senior Debt of stock or obligations which are issued pursuant to reorganization proceedings if such stock or obligations are subordinate and junior (whether by law or agreement) at least to the extent provided in this Noteparagraph 7 to the payment of all Senior Debt then outstanding and to the payment or any stock or obligations which are issued in exchange or substitution for any Senior Debt then outstanding. The consolidation of the Company with, or the merger of the Company with or into, another corporation or the liquidation or dissolution of the Company following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another corporation upon the terms and conditions consented to by the Required Holder(s) (it being understood that the holders of the Notes shall have no obligation whatsoever to consent to any merger or other consolidation involving the Company) shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this section if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions to which any such consent of the Required Holder(s) is subject.
(iv) Upon the occurrence and during the continuance of any Default Subordination Event (other than as expressly permitted under circumstances when the terms of subparagraph (ii) above are applicable), no holder of the Notes shall accept or receive any direct or indirect payment by set-off or otherwise of or on account of any indebtedness in respect of the Notes during the Stand-Still Period, PROVIDED that in the case of any payment on or in respect of any Note which would (in the absence of any such Default Subordination Event) have been due and payable on any date during such Stand-Still Period, the provisions of this subparagraph (iv) shall not prevent such payment on or after the date immediately following the termination or such Stand-Still Period.
(v) If any payment or distribution of any character, whether in cash, securities or other property, shall be received by any holder of Note in contravention of any of the terms of this Noteparagraph 7 and before all the Senior Debt shall have been paid in full, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (in trust for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights holders of the Senior Interest Holders in respect of Debt at the Senior Interests until the Senior Interests have been time outstanding and shall forthwith be paid over or delivered and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated transferred to the then existing rights holders of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Debt.
Appears in 1 contract
Sources: Subordinated Note and Warrant Purchase Agreement (Equity Compression Services Corp)
Subordination. Borrower and2.4.1 Notwithstanding the covenant of the relevant Issuer given in Clause 2.3, by its acceptance the rights and claims of this Notethe Trustee, Lender hereby acknowledge the ECN Holders and agree that any and all payments made Couponholders against the relevant Issuer under the ECNs in respect of principal, premium, interest and other amounts payable in respect of or arising under the ECNs and this Note Trust Deed are subject to Condition 3(a) of the Dated ECNs and shall remain subordinate the Undated ECNs, as the case may be (and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter describedcase of the Undated ECNs only, Condition 5(a)), and subordinated on a winding-up or administration of the relevant Issuer as provided in Condition 3(b) owed to Wachovia Bank, National Associationof the Dated ECNs and Undated ECNs, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. case may be.
2.4.2 In the event of the occurrence of any dissolutionevent described in Condition 3(b)(i) or (ii) of the Dated ECNs, winding upany amounts payable to and received by the Trustee pursuant to the provisions of this Trust Deed in respect of Dated ECNs by or from the relevant Issuer or its liquidator or administrator after any such event will be received by it on trust to apply the same:
(i) first, liquidationin payment or satisfaction of all amounts then due and unpaid under Clause 11 to the Trustee and/or any Appointee and in retention of an amount which the Trustee acting reasonably, readjustmentconsiders necessary to pay any amounts that it considers will thereafter become due to be paid under Clause 11 to it or any Appointee, reorganization to the extent it considers that moneys received by it thereafter under this Trust Deed will be insufficient and/or will not be received in time to pay such amounts;
(ii) second in payment of claims of the relevant Issuer Senior Creditors (not being creditors who are or are trustees of the ECN Holders) to the extent that such claims are admitted to proof in the winding-up or administration (or having been satisfied out of the other similar event relating resources of the relevant Issuer) and excluding any sum in respect of interest which is payable contingently upon the relevant Issuer being or being proved to Borrowerbe able to pay admitted claims in full;
(iii) third (without prejudice to the provisions of Clause 7.2), whether voluntary or involuntaryunless and to the extent attributable, partial or completein the opinion of the Trustee, to a particular Series of Dated ECNs, by apportioning the same pari passu and rateably between each Series of ECNs, and whether all such moneys received by the Trustee to the extent attributable in bankruptcythe opinion of the Trustee to a particular Series of Dated ECNs or which are apportioned to such Series as aforesaid, insolvency shall be applied in or receivership proceedings, towards any amounts owing in respect of such Series of Dated ECNs and Coupons; and
(iv) as to the balance (if any) to the administrator or upon an assignment liquidator for the benefit of creditors, or any other marshaling time being of the assets and liabilities of Borrower relevant Issuer.
2.4.3 The trust secondly mentioned in Clause 2.4.2 may be performed by the Trustee’s paying over to such administrator or any sale of all or substantially all liquidator for the time being of the assets relevant Issuer the amounts received by the Trustee as aforesaid (less any amounts thereof applied in the implementation of Borrower (the trust first mentioned in Clause 2.4.2) on terms that such proceedings being herein collectively called “Bankruptcy Proceedings”), administrator or liquidator shall distribute the Senior Interest same accordingly and the receipt of such administrator or liquidator for the same shall first be paid and performed a good discharge to the Trustee for the performance by it of the trust secondly mentioned in full and in cash before the Lender Clause 2.4.2.
2.4.4 The Trustee shall be entitled and it is hereby authorised to receive call for and to retain any payment accept as conclusive evidence thereof a certificate from the administrator or distribution liquidator for the time being of the relevant Issuer as to:
(i) the amount of the claims of the creditors referred to in Clause 2.4.2(ii) (except as therein mentioned); and
(ii) the persons entitled thereto and their respective entitlements.
2.4.5 In respect of the Undated ECNs only, and without prejudice to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative AgentCondition 14, in the name event of:
(i) an order being made, or an effective resolution being passed, for the winding-up of the Lender relevant Issuer (except a solvent winding-up solely for the purposes of a reorganisation, reconstruction or otherwiseamalgamation of the Issuer or the substitution in place of the relevant Issuer of a successor in business of the relevant Issuer, may demandthe terms of which reorganisation, ▇▇▇ forreconstruction, collectamalgamation or substitution (x) have previously been approved in writing by the Trustee or by an Extraordinary Resolution and (y) do not provide that the Undated ECNs shall thereby become redeemable or repayable in accordance with the Conditions); or
(ii) an administrator of the relevant Issuer being appointed and such administrator declaring, receive or giving notice that it intends to declare and receipt for any distribute, a dividend, the rights and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender holders of Undated ECNs and the Couponholders against the relevant Issuer in respect of or arising under (including any damages awarded for breach of any obligations under) the Undated ECNs, the Coupons and this Trust Deed relating to this Notethem will be subordinated, in the manner provided in Condition 3(b) and in this Trust Deed, in that there shall be payable by the relevant Issuer whether or not the conditions referred to in Condition 5(a) are satisfied on the date upon which the same would otherwise be due and payable (A) in respect of each case until Undated ECN (in lieu of any other payment by the Senior Interests shall relevant Issuer), such amount, if any, as would have been paid payable to the holder of such Undated ECN if, throughout such winding-up or administration, such holder of Undated ECNs was the holder of one of a class of preference shares in the capital of the relevant Issuer (“Issuer Notional Preference Shares”) having a preferential right to a return of assets in the winding-up or administration over, and performed so ranking ahead of, the holders of all other classes of issued shares for the time being in full and in cash. In the event capital of the relevant Issuer but ranking junior to the claims of relevant Issuer Senior Creditors on the assumption that the Lender receives amount that such holder of Undated ECNs was entitled to receive in respect of each Issuer Notional Preference Share on a return of assets in such winding-up or administration was an amount equal to the principal amount of, and any payment or other distribution applicable premium on, the relevant ECN, any accrued interest and any outstanding and unsatisfied Deferred Accrued Conversion Interest thereon and, in the case of Registered ECNs, any kind or character from Borrower or from other source whatsoeveroutstanding and unsatisfied Deferred Interest Payment; (B) in the case of Bearer ECNs, in respect of this Note, each Coupon (in lieu of any other than as expressly permitted payment by the terms of this Noterelevant Issuer), such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender amount, if any, as would have been payable to the Administrative Agent (for holder of such Coupon if, throughout such winding-up or administration, such holder was the benefit holder of Issuer Notional Preference Shares on the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by assumption that the Senior Interest Holders amount that such holder was entitled to receive in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated each Issuer Notional Preference Share on a return of assets in such winding-up or administration was an amount equal to the then existing rights of outstanding and unsatisfied Deferred Interest Payment relating to the Senior relevant Interest Holders Payment Date in respect of the Senior Interests until the Senior Interests have been paid such Coupon; and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated C) to the then existing rights of the Senior Interest Holdersextent not otherwise included within (A) or (B) above, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect amounts attributable to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole Undated ECNs or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstatedrelevant Coupons, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice including any damages awarded for breach of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. obligations.
2.4.6 Nothing contained in this Note is intended Trust Deed shall in any way restrict the right of the relevant Issuer to issue obligations or give guarantees in each case ranking in priority to or pari passu with or junior to the obligations of the relevant Issuer in respect of the ECNs and if in the opinion of the Trustee any modification to the provisions of this Clause to permit such ranking is necessary or expedient, the Trustee is hereby authorised to concur with the relevant Issuer in executing a supplemental deed effecting such modification provided that the Trustee shall impairbe entitled to assume that no such modification is required unless and until notified to the contrary by the relevant Issuer. For the avoidance of doubt, the provisions of this Clause 2.4 and Condition 3(b) of the Dated ECNs or Undated ECNs, as between Borrowerthe case may be, its creditors (other than apply only to the Senior Interest Holders) and the Lenderprincipal, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of premium and interest on this Note as and when the same shall become due and any other amounts payable in accordance with the terms hereof or to affect then relative rights respect of the Lender ECNs and creditors Coupons and nothing in this Clause 2.4 or Condition 3(b) of Borrower (other than the Senior Interest Holders)Dated ECNs or Undated ECNs, as the case may be, or in Condition 12 of the Dated ECNs or Condition 14 of the Undated ECNs, as the case may be, shall affect or prejudice the payment of the costs, charges, expenses, liabilities or remuneration of the Trustee or the rights and remedies of the Trustee in respect thereof.
Appears in 1 contract
Subordination. (a) The Subordinated Creditor hereby subordinates the Subordinated Debt to the Senior Debt Obligations to the extent and in the manner hereinafter set forth in this Agreement.
(b) Except during the continuance of a Default (including the commencement and continuation of any Insolvency Proceeding relating to any Material Subsidiary), the Subordinated Creditor may receive regularly scheduled payments from the Borrower andon account of the Subordinated Debt. After the occurrence and during the continuance of any Default (including the commencement and continuation of any Insolvency Proceeding relating to any Material Subsidiary), by its acceptance however, unless the Required Lenders otherwise agree, the Subordinated Creditor shall not demand, accept or take any action to collect any payment on account of this Notethe Subordinated Debt.
(c) In any Insolvency Proceeding relating to the Borrower or any Material Subsidiary, Lender hereby acknowledge and agree the Subordinated Creditor agrees that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids each Creditor Party (as defined in the Receivables Purchase Agreement hereinafter describedSecurity Agreement) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive payment in full in cash of all Senior Debt Obligations owed to such Creditor Party (including all interest and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“Post Petition Interest”)) before such Subordinated Creditor receives payment of any Subordinated Debt.
(d) After the occurrence and during the continuance of any Default (including the commencement and continuation of any Insolvency Proceeding relating to retain the Borrower or any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this NoteMaterial Subsidiary), the Lender hereby irrevocably agrees that Subordinated Creditor shall, if the Collateral Agent (acting at the direction of the Administrative Agent) so requests, collect, enforce and receive payments on account of the Subordinated Debt as trustee for the Creditor Parties and deliver such payments to the Collateral Agent on account of the Senior Debt Obligations owed to the Creditor Parties (including all Post Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of the Borrower under the provisions of any other Financing Document.
(e) After the occurrence and during the continuance of any Default (including the commencement and continuation of any Insolvency Proceeding against the Borrower or any Material Subsidiary), the Collateral Agent is authorized and empowered (but without any obligation to so do), in its discretion, (i) in the name of the Lender or otherwiseSubordinated Creditor, may demandto collect and enforce, ▇▇▇ forand to submit claims in respect of, collect, receive Subordinated Debt and receipt for to apply any amounts received thereon to the Senior Debt Obligations (including any and all such payments or distributionsPost Petition Interest), and file(ii) to require the Subordinated Creditor (A) to collect and enforce, prove and vote or consent to submit claims in respect of, Subordinated Debt and (B) to pay any amounts received on such Bankruptcy Proceedings with respect obligations to the Collateral Agent for application to the Senior Debt Obligations (including any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest HoldersPost Petition Interest).
Appears in 1 contract
Subordination. Capitalized terms used in this Section but not otherwise defined in this Agreement or in this Section shall have the meanings ascribed to them in the Credit Agreement.
(a) All payment obligations of the Borrower andhereunder (whether for principal, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note interest or otherwise) (the “Subordinated Obligations”) are and shall remain subordinate be expressly subordinated and junior subject in right of payment to the prior indefeasible repayment in full of all Aggregate Unpaids the obligations of the Borrower now or hereafter existing under the Credit Agreement (as defined in the Receivables Purchase Agreement hereinafter described“Senior Obligations”) owed to Wachovia Bank, National Association(which, as used herein, shall include without limitation the obligations to pay principal and interest on such Senior Obligations, and all commissions, fees, indemnities, prepayment premiums and other amounts payable to the Administrative Agent or any lenders or sureties (together with its successors in such capacitylenders or sureties, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest HoldersLenders”), pursuant agents or trustees under any Loan Documents with respect to such Senior Obligations, and post-petition interest and post-petition attorneys’ fees and costs, whether or not allowable in bankruptcy, in each case to the extent such items constitute Senior Obligations).
(b) The Borrower and the Lender hereby agree that certain Receivables Purchase Agreement dated as no payment or prepayment shall be made by or on behalf of December 21the Borrower for or on account of any Subordinated Obligations, 2009 by and among the Lender shall not ask, demand, ▇▇▇ for, take or receive from the Borrower, the Purchasers and the Administrative Agentdirectly or indirectly, BorgWarner Inc. as collection agent (as amendedin cash, restated other property, or otherwise modified any rights or by set-off or in any other manner, including, without limitation, from time to timeor by way of collateral, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms payment of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; providedSubordinated Obligations, that interest unless and until the Senior Obligations shall be paid on the amount have been indefeasibly repaid to and including the date of repayment. in full in cash.
(c) In the event of (i) any dissolutioninsolvency or bankruptcy case or proceeding in connection therewith, winding uprelative to the Borrower or to its creditors as such, or to its assets, or (ii) any liquidation, readjustment, reorganization dissolution or other similar event relating to winding up of the Borrower, whether partial or complete and whether voluntary or involuntary, partial or complete, involuntary and whether in bankruptcy, or not involving insolvency or receivership proceedings, bankruptcy or upon an (iii) any assignment for the benefit of creditors, creditors or any other marshaling of the assets and liabilities of Borrower or the Borrower, then and in any sale such event the Senior Lenders shall be entitled to receive payment in full of all amounts due or substantially to become due on or in respect of all of Senior Obligations or under the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash Credit Agreement before the Lender shall be entitled to receive any payment on account of the Loan (whether in respect of principal, interest premium, fees, indemnities, commissions or otherwise) and to retain that end, any payment or distribution of any kind or character, whether in cash, property or securities which may be payable or deliverable in respect of the Loan in any such case, proceeding, dissolution, liquidation or other winding up or event shall instead be paid or delivered to this Notethe Senior Lenders for application to the Senior Obligations, whether or not due, until the Senior Obligations shall have first been fully paid and satisfied in cash.
(d) If any event of default (or event or condition that with the giving of notice or passage of time or both would constitute an event of default) shall have occurred and be continuing under the Credit Agreement, then no payment shall be made by the Borrower on or in respect of the Loan, unless and until such event of default, event or condition shall have been remedied or waived.
(e) In the event that the Lender receives on account or in respect of the Loan or otherwise after the occurrence and during the continuance of an event of default under the Credit Agreement any distribution of assets by the Borrower or payment by or on behalf of the Borrower of any kind or character, whether in cash, securities or other property, such receipts shall be received in trust for the benefit of the Senior Lenders, shall be segregated from other funds and property held by the Lender and shall be forthwith paid over to the Administrative Agent under the Credit Agreement for the account of the Senior Lenders in the same form as so received (with any necessary endorsement or assignment) to be applied (in the case of cash) to, or held as collateral (in the case of non-cash property or securities) for, the repayment or prepayment of the Senior Obligations. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name event of failure of the Lender to make any such endorsement or otherwiseassignment, may the Senior Lenders irrevocably are authorized and empowered by and on behalf of the Lender to make the same.
(f) The Lender (i) irrevocably authorizes and empowers (without imposing any obligation on) Senior Lenders (or their agents, attorneys or trustees) to demand, ▇▇▇ for, collect, receive and receipt for all payments and distributions on or in respect of its Subordinated Obligations which are required to be paid or delivered to the Senior Lenders, as provided herein, and to file and prove all claims therefore and take all such other action, in the name of the Lender or otherwise, as Senior Lenders may determine to be necessary or appropriate for the enforcement of the subordination terms contained in this Agreement, (ii) irrevocably authorizes and empowers (without imposing any obligation) Senior Lenders (or their agents, attorneys or trustees) to vote the Subordinated Obligations (including, without limitation, voting the Subordinated Obligations in favor of or in opposition to any matter which may come before any meeting of creditors of the Borrower generally or in connection with, or in anticipation of, any insolvency or bankruptcy case or proceeding, or any proceeding under any laws relating to the relief of debtors, readjustment of Indebtedness, arrangements, reorganizations, compositions or extensions relative to the Borrower) and (iii) agrees to execute and deliver to Senior Lenders all such further instruments confirming the above authorization, and all such payments or distributionspowers of attorney, proofs of claim, assignments of claim and other instruments, and fileto take all such other action, prove and vote or consent as may be requested by Senior Lenders in any such Bankruptcy Proceedings with respect order to any and enable Senior Lenders to enforce all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment upon or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Notethe Subordinated Obligations.
(g) The Lender agrees, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the each Senior Interest Holders) forthwith. Notwithstanding Lender, that they will give each Senior Lender prompt notice of any payments or distributions received default by the Senior Interest Holders Borrower in respect of this Notethe Subordinated Obligations.
(h) Until the repayment in full of the Senior Obligations, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights transfer, sell, assign, pledge, encumber or otherwise dispose of any of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)Subordinated Obligations, the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, unless such transfer, pledge sale, assignment, pledge, encumbrance or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) disposition is made with the Lender shall not, without the advance prior written consent of the Administrative AgentAgent under the Credit Agreement.
(i) No failure on the part of Senior Lenders and no delay in exercising, commenceany right, remedy or power hereunder shall operate as a waiver thereof by Senior Lenders, nor shall any single or partial exercise of any right, remedy or power hereunder, preclude any other or future exercise of Senior Lenders of any other right, remedy or power. Each and every right, remedy and power granted to Senior Lenders, or join with allowed Senior Lenders by law or other agreement shall be cumulative and not exclusive, and may be exercised by Senior Lenders, from time to time.
(j) Without in any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since way limiting the Final Payout Date shall have occurred; (iii) ifgenerality of the foregoing paragraph, at any time, any payment (in whole without the consent of or in part) of any Senior Interest is rescinded notice to the Lender, without incurring responsibility or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue liability to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of and without impairing or releasing the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent subordination provided herein or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights hereunder of the Lender, on the one hand, and the Senior Interest Holders on Lenders may do any one or more of the other hand. Nothing contained following: (i) change the manner, place or terms of payment of or extended the time of payment of, or renew or alter, Senior Obligations or any collateral security or guaranty therefor, or otherwise amend or supplement in this Note is intended to any manner Senior Obligations or shall impairany instruments evidencing the same or any agreement under which Senior Obligations are outstanding; (ii) sell, as between Borrowerexchange, its creditors release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Obligations; (other than iii) release any Person liable in any manner for the Senior Interest HoldersObligations; and (iv) exercise or refrain from exercising any rights against the Borrower and any other Person. The Lender unconditionally waives notice of the incurring of Senior Obligations or any part thereof.
(k) The Lender, Borrower’s obligationat its own cost, which is unconditional shall take any further action as the Senior Lenders may reasonably request in order to carry out more fully the intent and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights purpose of the Lender and creditors of Borrower (other than the Senior Interest Holders)Subordination Terms.
Appears in 1 contract
Sources: Convertible and Subordinated Loan Agreement (Ternium S.A.)
Subordination. Borrower andNotwithstanding anything to the contrary contained in this Note, the Holder agrees, by its acceptance of this Note, Lender hereby acknowledge that the obligations under this Note, including principal, interest and agree that all other amounts payable hereunder (collectively, the “Subordinated Indebtedness”), shall be and remain junior and subordinate to any and all payments made indebtedness, obligations and liabilities, including principal and interest, of the Borrower and the Subsidiaries to the Senior Lenders under a Senior Credit Facility now existing or hereafter arising, whether direct or indirect, secured or unsecured, absolute or contingent, joint or several or joint and several, and howsoever owned, held or acquired, whether through discount, purchase, direct loan or as collateral or otherwise and all post-petition interest in respect a bankruptcy or similar proceeding whether or not allowed, all on the following terms and conditions:
(a) The Holder will take no steps, whether by suit or otherwise, to compel or enforce the collection of this Note are and shall remain subordinate and junior Subordinated Indebtedness, nor will the Holder use Subordinated Indebtedness by way of counterclaim, set-off, recoupment or otherwise so as to diminish, discharge or otherwise satisfy in right whole or in part any indebtedness or liability of payment the Holder to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, whether now existing or hereafter arising and howsoever evidenced.
(b) In the Purchasers and the Administrative Agentevent of any distribution, BorgWarner Inc. as collection agent (as amendeddividend, restated or otherwise modified from time to timeapplication, the “Receivables Purchase Agreement”). Borrower shallpartial or complete, subject to the terms voluntary or involuntary, by operation of this Section 3law or otherwise, have the right to pay of all or any part of the unpaid principal amount assets of this Note without premium the Borrower or penalty at of the proceeds thereof to the creditors of the Borrower or upon any time; providedindebtedness of the Borrower, that interest occurring by reason of the liquidation, dissolution, or other winding up of the Borrower, or by reason of any execution sale, or bankruptcy, receivership, reorganization, arrangement, insolvency, liquidation or foreclosure proceeding of or for the Borrower or involving its property, no dividend, distribution or application shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or completemade, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Holder shall first be paid and performed in full and in cash before the Lender shall not be entitled to receive and to or retain any payment dividend, distribution, or distribution application on or in respect to this Note. In order to implement the foregoingof principal of or interest on Subordinated Indebtedness, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name unless and until all principal of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the interest on Senior Interests Indebtedness then outstanding shall have been paid and performed satisfied in full full, and in cash. In any such event any dividend, distribution or application otherwise payable in respect of Subordinated Indebtedness shall be paid and applied on Senior Indebtedness until such Senior Indebtedness has been fully paid and satisfied.
(c) No Senior Lender need at any time give the event that the Lender receives any payment or other distribution Holder notice of any kind of the creation or character existence of any Senior Indebtedness, nor of the amount or terms thereof, all such notice being hereby expressly waived. Also, the Senior Lenders may at any time from Borrower time to time, without the consent of or notice to the Holder, without incurring responsibility to the Holder, and without impairing or releasing the obligation of the Holder under this Note (i) renew, refund or extend the maturity of, or increase or decrease the amount of, any Senior Indebtedness, or any part thereof, or otherwise revise, amend or alter the terms and conditions thereof, (ii) sell, exchange, release or otherwise deal with any property by whomsoever at any time pledged, mortgaged or otherwise hypothecated or subjected to a lien to secure any Senior Indebtedness, and (iii) exercise or refrain from other source whatsoeverexercising any rights against the Borrower, any Subsidiary and others, including the Holder.
(d) The Holder will not sell, assign or otherwise transfer any Subordinated Indebtedness, or any part thereof, except subject to and in respect accordance with the terms of this Note, other than as expressly permitted Note and upon the agreement of the transferee or assignee to abide by and be bound by the terms of this Note, such payment .
(e) The Holder expressly subordinates all of the Holder’s rights in the Collateral now or other distribution shall be received for later securing the sole benefit Subordinated Indebtedness to all rights of the Senior Interest Holders Lenders, and shall be turned over by any and all of their successors and assigns, now or later existing in any of the Lender same Collateral to secure the Senior Indebtedness, and any and every lien or security interest with respect to the Administrative Agent (Collateral in favor of or held for the benefit of the Senior Interest HoldersLenders, and any and all of their successors and assigns, now have and shall have priority over every lien and security interest that the Holder now has or may hereafter acquire with respect to the Collateral, all notwithstanding any statement or provision contained in the instruments evidencing the Subordinated Indebtedness, or agreements with respect thereto or otherwise to the contrary and irrespective of the time or order of filing or recording of financing statements, deeds of trust, mortgages or other notices of Liens granted pursuant thereto, and irrespective of anything contained in any filing or agreement to which any part hereto or its respective successors and assigns may now or hereafter be a party, and irrespective of the ordinary rules for determining priorities under the Uniform Commercial Code of the State of Delaware or under any other law governing the relative priorities of secured creditors. The Holder consents to the creation and continuance of all present and future Liens of the Senior Lenders, and any and all of their successors and assigns, in the Collateral to secure the Senior Indebtedness and to the enforcement of those Liens, including the removal of the Collateral from the real property of the Borrower. This subordination as to the Collateral is intended to define the rights and duties of the Senior Lenders, and any and all of their successors and assigns, and the Holder; it is not intended that any third party shall benefit from it. If the effect of any provision of this Note would be to give any third party a priority status to which that party would not otherwise be entitled, that provision shall, to the extent necessary to avoid that priority, be given no effect and the rights and priorities of the Senior Lenders, and any and all of their successors and assigns, and the Holder shall be determined in accordance with applicable law.
(f) forthwithIf notwithstanding the provisions of this Section 9, the Holder shall receive any payment of principal or interest on Subordinated Indebtedness which the Borrower or any Subsidiary is not entitled to make pursuant to the terms hereof, whether or not the Holder has knowledge that the Borrower or any Subsidiary is not entitled to make such payment, the Holder shall promptly account for such payment and upon any Senior Lender’s demand pay over such payment to the Senior Lender for application to the Senior Indebtedness owing to the Senior Lenders. Notwithstanding No payment or any payments or distributions distribution received by Senior Lenders in respect of Subordinated Indebtedness pursuant to any of the terms hereof shall entitle the Holder to any right, whether by virtue of subrogation or otherwise, in and to any Senior Indebtedness unless and until all Senior Indebtedness owing to the Senior Interest Holders in respect Lenders has been fully paid and satisfied and the Senior Lenders obligations, if any, to extend credit to the Borrower or any Subsidiary have expired or otherwise been terminated.
(g) Holder further acknowledges and agrees, by acceptance of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights that SunTrust Bank (“SunTrust Bank”) is an intended third-party beneficiary of the Senior Interest Holders in respect provisions of this Section 9, and as such SunTrust Bank shall be fully entitled to enforce the Senior Interests until the Senior Interests have been paid and performed in full and in cashsame. Upon payment in full In addition, Holder, by acceptance of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement this Note, hereby appoints _____________ (the “Final Payout DateHolder’s Representative”) as the representative of Holder to execute a separate subordination agreement with SunTrust Bank on behalf of Holder in form and substance acceptable to SunTrust Bank (the “Subordination Agreement”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender and agrees that (i) the Lender shall not, until the Senior Interest has been paid Holder is appointed as agent and performed in full attorney-in-fact for and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each Holder, with full power of substitution and with full power and authority to execute such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation Subordination Agreement on behalf of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one handHolder, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or that such Subordination Agreement shall impair, be binding upon Holder and its successors as between Borrower, its creditors (other than the Senior Interest Holders) if expressly ratified and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)confirmed by them.
Appears in 1 contract
Subordination. Capitalized terms used in this Section but not otherwise defined in this Agreement or in this Section shall have the meanings ascribed to them in the Credit Agreement.
(a) All payment obligations of the Borrower andhereunder (whether for principal, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note interest or otherwise) (the “Subordinated Obligations”) are and shall remain subordinate be expressly subordinated and junior subject in right of payment to the prior indefeasible repayment in full of all Aggregate Unpaids the obligations of the Borrower now or hereafter existing under the Credit Agreement (as defined in the Receivables Purchase Agreement hereinafter described“Senior Obligations”) owed to Wachovia Bank, National Association(which, as used herein, shall include without limitation the obligations to pay principal and interest on such Senior Obligations, and all commissions, fees, indemnities, prepayment premiums and other amounts payable to the Administrative Agent or any lenders or sureties (together with its successors in such capacitylenders or sureties, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest HoldersLenders”), pursuant agents or trustees under any Loan Documents with respect to such Senior Obligations, and post-petition interest and post-petition attorneys’ fees and costs, whether or not allowable in bankruptcy, in each case to the extent such items constitute Senior Obligations).
(b) The Borrower and the Lender hereby agree that certain Receivables Purchase Agreement dated as no payment or prepayment shall be made by or on behalf of December 21the Borrower for or on account of any Subordinated Obligations, 2009 by and among the Lender shall not ask, demand, ▇▇▇ for, take or receive from the Borrower, the Purchasers and the Administrative Agentdirectly or indirectly, BorgWarner Inc. as collection agent (as amendedin cash, restated other property, or otherwise modified any rights or by set-off or in any other manner, including, without limitation, from time to timeor by way of collateral, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms payment of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; providedSubordinated Obligations, that interest unless and until the Senior Obligations shall be paid on the amount have been indefeasibly repaid to and including the date of repayment. in full in cash.
(c) In the event of (i) any dissolutioninsolvency or bankruptcy case or proceeding in connection therewith, winding uprelative to the Borrower or to its creditors as such, or to its assets, or (ii) any liquidation, readjustment, reorganization dissolution or other similar event relating to winding up of the Borrower, whether partial or complete and whether voluntary or involuntary, partial or complete, involuntary and whether in bankruptcy, or not involving insolvency or receivership proceedings, bankruptcy or upon an (iii) any assignment for the benefit of creditors, creditors or any other marshaling of the assets and liabilities of Borrower or the Borrower, then and in any sale such event the Senior Lenders shall be entitled to receive payment in full of all amounts due or substantially to become due on or in respect of all of Senior Obligations or under the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash Credit Agreement before the Lender shall be entitled to receive any payment on account of the Loan (whether in respect of principal, interest premium, fees, indemnities, commissions or otherwise) and to retain that end, any payment or distribution of any kind or character, whether in cash, property or securities which may be payable or deliverable in respect of the Loan in any such case, proceeding, dissolution, liquidation or other winding up or event shall instead be paid or delivered to this Notethe Senior Lenders for application to the Senoir Obligations, whether or not due, until the Senior Obligations shall have first been fully paid and satisfied in cash.
(d) If any event of default (or event or condition that with the giving of notice or passage of time or both would constitute an event of default) shall have occurred and be continuing under the Credit Agreement, then no payment shall be made by the Borrower on or in respect of the Loan, unless and until such event of default, event or condition shall have been remedied or waived.
(e) In the event that the Lender receives on account or in respect of the Loan or otherwise after the occurrence and during the continuance of an event of default under the Credit Agreement any distribution of assets by the Borrower or payment by or on behalf of the Borrower of any kind or character, whether in cash, securities or other property, such receipts shall be received in trust for the benefit of the Senior Lenders, shall be segregated from other funds and property held by the Lender and shall be forthwith paid over to the Administrative Agent under the Credit Agreement for the account of the Senior Lenders in the same form as so received (with any necessary endorsement or assignment) to be applied (in the case of cash) to, or held as collateral (in the case of non-cash property or securities) for, the repayment or prepayment of the Senior Obligations. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name event of failure of the Lender to make any such endorsement or otherwiseassignment, may the Senior Lenders irrevocably are authorized and empowered by and on behalf of the Lender to make the same.
(f) The Lender (i) irrevocably authorizes and empowers (without imposing any obligation on) Senior Lenders (or their agents, attorneys or trustees) to demand, ▇▇▇ for, collect, receive and receipt for all payments and distributions on or in respect of its Subordinated Obligations which are required to be paid or delivered to the Senior Lenders, as provided herein, and to file and prove all claims therefore and take all such other action, in the name of the Lender or otherwise, as Senior Lenders may determine to be necessary or appropriate for the enforcement of the subordination terms contained in this Agreement, (ii) irrevocably authorizes and empowers (without imposing any obligation) Senior Lenders (or their agents, attorneys or trustees) to vote the Subordinated Obligations (including, without limitation, voting the Subordinated Obligations in favor of or in opposition to any matter which may come before any meeting of creditors of the Borrower generally or in connection with, or in anticipation of, any insolvency or bankruptcy case or proceeding, or any proceeding under any laws relating to the relief of debtors, readjustment of indebtedness, arrangements, reorganizations, compositions or extensions relative to the Borrower) and (iii) agrees to execute and deliver to Senior Lenders all such further instruments confirming the above authorization, and all such payments or distributionspowers of attorney, proofs of claim, assignments of claim and other instruments, and fileto take all such other action, prove and vote or consent as may be requested by Senior Lenders in any such Bankruptcy Proceedings with respect order to any and enable Senior Lenders to enforce all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment upon or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Notethe Subordinated Obligations.
(g) The Lender agrees, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the each Senior Interest Holders) forthwith. Notwithstanding Lender, that they will give each Senior Lender prompt notice of any payments or distributions received default by the Senior Interest Holders Borrower in respect of this Notethe Subordinated Obligations.
(h) Until the repayment in full of the Senior Obligations, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights transfer, sell, assign, pledge, encumber or otherwise dispose of any of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)Subordinated Obligations, the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, unless such transfer, pledge sale, assignment, pledge, encumbrance or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) disposition is made with the Lender shall not, without the advance prior written consent of the Administrative AgentAgent under the Credit Agreement.
(i) No failure on the part of Senior Lenders and no delay in exercising, commenceany right, remedy or power hereunder shall operate as a waiver thereof by Senior Lenders, nor shall any single or partial exercise of any right, remedy or power hereunder, preclude any other or future exercise of Senior Lenders of any other right, remedy or power. Each and every right, remedy and power granted to Senior Lenders, or join with allowed Senior Lenders by law or other agreement shall be cumulative and not exclusive, and may be exercised by Senior Lenders, from time to time.
(j) Without in any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since way limiting the Final Payout Date shall have occurred; (iii) ifgenerality of the foregoing paragraph, at any time, any payment (in whole without the consent of or in part) of any Senior Interest is rescinded notice to the Lender, without incurring responsibility or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue liability to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of and without impairing or releasing the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent subordination provided herein or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights hereunder of the Lender, on the one hand, and the Senior Interest Holders on Lenders may do any one or more of the other hand. Nothing contained following: (i) change the manner, place or terms of payment of or extended the time of payment of, or renew or alter, Senior Obligations or any collateral security or guaranty therefor, or otherwise amend or supplement in this Note is intended to any manner Senior Obligations or shall impairany instruments evidencing the same or any agreement under which Senior Obligations are outstanding; (ii) sell, as between Borrowerexchange, its creditors release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Obligations; (other than iii) release any Person liable in any manner for the Senior Interest HoldersObligations; and (iv) exercise or refrain from exercising any rights against the Borrower and any other Person. The Lender unconditionally waives notice of the incurring of Senior Obligations or any part thereof.
(k) The Lender, Borrower’s obligationat its own cost, which is unconditional shall take any further action as the Senior Lenders may reasonably request in order to carry out more fully the intent and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights purpose of the Lender and creditors of Borrower (other than the Senior Interest Holders)Subordination Terms.
Appears in 1 contract
Sources: Convertible and Subordinated Loan Agreement (Ternium S.A.)
Subordination. Borrower and, by its acceptance of this Note, Lender hereby acknowledge and agree that any Until the TCA Loan and all payments made in respect obligations of this Note are any nature or kind of Credit Parties to TCA under the Credit Agreement and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bankother Loan Documents, National Associationwhether now existing or hereafter arising, as Administrative Agent (together with its successors in such capacityall accrued and unpaid interest thereon, all other fees and charges due, owing or payable by Credit Parties under the Credit Agreement and other Loan Documents, together with all costs of collection with respect thereto (including attorneys’ fees and court costs and expenses throughout all trial and appellate levels and all negotiations, mediations, arbitrations and bankruptcy proceedings) (collectively, the “Administrative AgentSenior Debt”) are indefeasibly paid in full and for itself and various other purchasers from time cash to time party thereto TCA (the hereinafter referred to as a “PurchasersDischarge” or as the Senior Debt being “Senior Interest HoldersDischarged”), pursuant that certain Receivables Purchase Agreement dated Subordinating Creditor does hereby fully and unconditionally subordinate: (i) except as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this provided in Section 3, have the any right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name by or on behalf of the Lender Credit Parties, directly or otherwiseindirectly, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of assets of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution Credit Parties of any kind or character from Borrower for or from other source whatsoeveron account of the Subordinated Debt, in respect of this Noteincluding the LLC Interests; and (ii) any and all security interests, other than as expressly permitted by the terms of this Noteliens, such payment charges, encumbrances or other distribution shall be received for interests that Subordinating Creditor may have or obtain at any time in any assets or property of Credit Parties, the sole benefit of LLC Interests, or any other Collateral to secure the Senior Interest Holders and shall be turned over by Subordinated Debt (the Lender “Subordinating Creditor Liens”), to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon prior payment in full of the Aggregate Unpaids Senior Debt, and termination to TCA’s Security Interest in the Collateral, and Subordinating Creditor agrees that until such time as the Senior Debt has been Discharged, any and all Subordinating Creditor Liens shall be junior and subordinate to TCA’s Security Interest, and TCA’s Security Interest shall be first, senior and prior to each of the commitments under Subordinating Creditor Liens. The priority specified in the Receivables Purchase Agreement (preceding sentence shall be applicable irrespective of the “Final Payout Date”)dates, times or order of attachment or perfection of the Subordinating Creditor Liens, the Lender shall be subrogated time or order of filing of any Subordinating Creditor Liens, the time or order of filing of any financing statements relating to any of the Subordinating Creditor Liens, the time or order of obtaining control or possession, the giving or failure to give notice of the acquisition or expected acquisition of any purchase money liens, the failure to perfect or maintain the perfection or priority of TCA’s Security Interest or the failure of TCA to obtain control or possession of any Collateral. Subordinating Creditor, to the then existing rights of the Senior Interest Holdersfullest extent permitted by applicable law, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings waives as to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencingTCA, any Bankruptcy Proceedings requirement regarding, and agrees not to demand, request, plead or otherwise claim the benefit of, any marshaling, appraisement, valuation or other similar right that may otherwise be available to Subordinating Creditor under applicable law with respect to Borrower until at least one year any Collateral. For avoidance of doubt, TCA and one day shall have passed since Subordinating Creditor hereby clarify for each other that the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Debt and TCA’s Security Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstatedsenior in all respects to the Subordinated Debt and the Subordinating Creditor Liens, as and that the case may be, as though such payment had not been made; (iv) Subordinated Debt and the Lender waives: (x) notice of acceptance of these provisions by any of Subordinating Creditor Liens shall be junior and subordinate in all respects to the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Debt and TCA’s Security Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders).
Appears in 1 contract
Subordination. (A) The payment and performance of the Subordinated Indebtedness is hereby subordinated to the Final Payment of the Senior Indebtedness and except for Allowed Payments (defined herein), Subordinated Lender will not ask, demand, sue ▇▇▇, take or receive from Borrower and, by its acceptance of this Note, Lender hereby acknowledge and agree that setoff or in any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacityother manner, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all whole or any part of the unpaid principal amount Subordinated Indebtedness which may now or hereafter be owing by Borrower and will not take any negotiable instruments evidencing such amounts for any of this Note without premium the foregoing, unless and until there is a Final Payment of the Senior Indebtedness. Subordinated Lender now possesses and hereafter may acquire Liens or penalty at security interests in the Collateral and hereby agrees that except for Permitted First Liens, any time; providedLiens, that interest security interests, claims and rights of any kind it may now possess or hereafter acquire against Borrower, any Obligor and/or the Collateral shall be paid on subordinate and subject to the amount repaid to Liens, security interests, claims and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to rights against Borrower, whether voluntary any Obligor and/or the Collateral of Senior Lender arising from or involuntaryout of the Senior Indebtedness, partial regardless of the order or completetime as of which any Liens attach to any of the Collateral, and whether in bankruptcy, insolvency the order or receivership proceedings, or upon an assignment for the benefit time of creditors, UCC filing or any other marshaling filings, notices or recordings, the order or time of granting of any such Liens, or the physical possession of any of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed Collateral until this Agreement is terminated in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Noteaccordance with Section 26 hereof. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly Unless otherwise permitted by the terms of this NoteAgreement, such payment the Subordinated Lender shall have no right to possession of any Collateral or other distribution shall be received for to foreclose upon any Collateral, whether by judicial action or otherwise, unless and until the sole benefit Senior Indebtedness has been Finally Paid. The Subordinated Lender also hereby agrees that, regardless of whether any of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Indebtedness is secured or unsecured, Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights Subordinated Lender with respect to the Subordinated Lender's claims against Borrower and the Subordinated Lender's Liens, if any, in any of Borrower's Collateral and the proceeds thereof until all of the Senior Interest HoldersIndebtedness has been Finally Paid.
(B) Subordinated Lender shall, if any. In accepting simultaneously with the execution and delivery of this Agreement, cause the following legend to be placed on the Subordinated A Note, the Subordinated B Note and the Subordinated C Note: This Senior Subordinated Secured Promissory Note (this "Note") and the indebtedness evidenced hereby are subordinated in the manner and to the extent set forth in the Subordination and Intercreditor Agreement (the "Subordination Agreement") dated as of March 26, 1999, by the payee of this Note in favor of Congress Financial Corporation (Central) (together with its successors and assigns, the "Senior Lender") to all indebtedness (including interest) at any time owed by the maker of this Note to Senior Lender, and each holder of this Note, by its acceptance hereof, shall be bound by the Lender agrees that Subordination Agreement.
(iC) the Subordinated Lender shall notsimultaneously with the execution and delivery of this Agreement, until cause the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue following legend to be effective or shall be reinstatedplaced on each stock certificate evidencing the Preferred Stock: This Certificate and any entitlements afforded to it under the Certificate of Incorporation, as amended, of Forest City Auto Parts Company, is subordinated in the case may bemanner and to the extent set forth in the Subordination and Intercreditor Agreement (the "Subordination Agreement") dated as of March 26, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions 1999, by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note Certificate in favor of Congress Financial Corporation (Central) (the "Senior Lender") to all Persons who become indebtedness (including interest) at any time owed by the holders of, or who continue issuer of this Certificate to hold, Senior InterestsLender, and these provisions are made for each holder of this Certificate, by its acceptance hereof, shall be bound by the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Subordination Agreement.
Appears in 1 contract
Sources: Subordination and Intercreditor Agreement (Tyler Corp /New/)
Subordination. (a) Guarantor hereby agrees that, until the Termination Date, all obligations and all indebtedness of Borrower andto Guarantor, by its acceptance of this Note, Lender hereby acknowledge and agree that including any and all payments made in respect present and future indebtedness regardless of this Note its nature or manner of origination now or hereafter to become due and owing by Borrower to Guarantor (collectively, the "Subordinated Indebtedness"), are hereby subordinated and postponed and shall remain subordinate and junior be inferior, in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bankrespects, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right Obligations.
(b) In no circumstance shall any Subordinated Indebtedness be entitled to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any timecollateral security; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In in the event of any dissolutionsuch collateral security exists, winding up, liquidation, readjustment, reorganization Guarantor hereby agrees that any now existing or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or hereafter arising Lien upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”)in favor of Guarantor, the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoingwhether created by contract, in accepting this Noteassignment, the Lender hereby irrevocably agrees that the Administrative Agentsubrogation, in the name reimbursement, indemnity, operation of the Lender law, principles of equity or otherwise, may demandshall be junior and inferior to, ▇▇▇ forand is hereby subordinated in priority to any now existing or hereafter arising Liens in favor of Agent, for the benefit of Co-Agents and Lenders, in and against the Collateral, regardless of the time, manner or order of creation, attachment or perfection of the respective Liens.
(c) Except as expressly permitted in the Credit Agreement, Guarantor hereby agrees that it shall not assert, collect, receive and receipt for accept payment on or enforce any and all such payments of the Subordinated Indebtedness or distributionstake collateral or other security to secure payment of the Subordinated Indebtedness until the Termination Date. Guarantor shall not demand payment of, accelerate the maturity of, or declare a default or event of default under the Subordinated Indebtedness until the Termination Date. Except as expressly permitted in the Credit Agreement, Guarantor shall not cause or permit Borrower to make or give, and fileGuarantor shall not receive or accept, prove and vote or consent payment in any such Bankruptcy Proceedings with respect form (whether direct or indirect, including by transfer to any and all claims an Affiliate or Subsidiary of Borrower or Guarantor) on account of the Lender relating to this NoteSubordinated Indebtedness, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives make any payment or other distribution of any kind or character from Borrower or from other source whatsoever, transfers in respect of this Notethe Subordinated Indebtedness without the express prior written consent of Agent (which consent may be withheld for any reason in Agent's sole discretion), other than as expressly permitted or give any collateral security for the Subordinated Indebtedness. Any payment, transfer, or collateral security so made or given by Borrower and received or accepted by Guarantor, without the terms express prior written consent of this NoteAgent, such payment or other distribution shall be received held in trust by Guarantor for the sole benefit account of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid Co-Agents and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”Lenders), the Lender and Guarantor shall be subrogated to the then existing rights of the Senior Interest Holdersimmediately turn over, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencingkind, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence to Agent for application in enforcement, collection or protection reduction of, or realization upon(in the case of property other than cash) as security for, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder Obligations of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Guarantor hereunder.
Appears in 1 contract
Subordination. Borrower andThe Notes are subordinated to the Senior Debt, which is the Company's Indebtedness and other Obligations under the New Credit Agreement that are permitted to be incurred by its acceptance the Company under the terms of this Notethe Indenture, Lender hereby acknowledge and agree any other Indebtedness that any and all payments made in respect is permitted to be incurred by the Company under the terms of this Note are and shall remain subordinate and junior the Indenture as Senior Debt, unless the instrument under which such Indebtedness is incurred expressly provides that it is on a parity with or subordinated in right of payment to the Notes, and the Notes shall be PARI PASSU with, or senior to, in right of payment of principal of, premium, if any, and accrued and unpaid interest on, all Aggregate Unpaids (as defined in existing and future subordinated Indebtedness of the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated Company. Indebtedness of any Person as of December 21any date means and includes, 2009 by and among Borrowerwithout duplication, the Purchasers and the Administrative Agent(i) all indebtedness, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets obligations and liabilities of Borrower such Person in respect of borrowed money including all interest, fees and expenses owned with respect thereto (whether or any sale not the recourse of all or substantially all the lender is to the whole of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”Person or only to a portion thereof), or evidenced by bonds, notes, debentures or similar instruments, or representing the Senior Interest shall first be paid deferred and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name unpaid balance of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution purchase price of any kind property or character from Borrower or from other source whatsoeverinterest therein, if an to the extent such indebtedness would appear as a liability upon a balance sheet of such Person prepared on a consolidated basis in accordance with GAAP, (ii) all Capitalized Lease Obligations of such Person, (iii) all obligations of such Person in respect of letters of credit, bankers' acceptances, letter of credit reimbursement or similar agreement (whether or note such items would appear on the balance sheet of such Person), (iv) all net Obligations of such Person in respect of interest rate protection and foreign current hedging arrangements and (v) all Guarantees by such Person of items that would constitute Indebtedness under this Notedefinition (whether or not such items would appear on such balance sheet). The amount of Indebtedness of any Person at any date shall be, without duplication, the principal amount that would be shown on a balance sheet of such Person prepared as of such date in accordance with GAAP and the maximum net liability of any contingent Obligations referred to in clauses (i) through (v) above at such date. Interest rate swap, cap, collar or other than as expressly hedging agreements shall not be deemed to be Indebtedness for purposes of the Indenture to the extent that they are entered into for the purpose (which may be definitively established by delivering an Officers Certificate to such effect to the Trustee) of reducing interest rate or currency exposure on any Indebtedness permitted to be outstanding by the terms of this NoteIndenture. To the extent provided in the Indenture, such payment or other distribution shall Senior Debt must be received for paid before the sole benefit of the Senior Interest Holders Notes may be paid. The Company agrees, and shall be turned over each Securityholder by the Lender accepting a Note agrees, to the Administrative Agent (for subordination and authorizes the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated Trustee to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)give it effect.
Appears in 1 contract
Sources: Credit Agreement (Chattem Inc)
Subordination. Borrower and(a) Solely with respect to the Notes, by its acceptance and not for the purposes of any other Securities, Article XIV of the Base Indenture will not apply to the Notes and will instead be deemed to be replaced with the corresponding provisions of this NoteSection 2.06.
(b) The Company, Lender hereby acknowledge for itself, its successors and agree assigns, covenants and agrees, and each Holder of Notes by the Holder’s acceptance thereof, likewise covenants and agrees, that any the payment of the principal of and interest on each and all payments made in respect of this Note are the Notes is and shall remain subordinate and junior will be expressly subordinated in right of payment to the prior payment in full of all Aggregate Unpaids (as defined Senior Indebtedness to the extent and in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors manner described in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. 2.06.
(c) In the event of any dissolutionthe insolvency, winding upbankruptcy, liquidationreceivership, readjustment, reorganization liquidation or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling marshalling of the assets and liabilities of Borrower or any sale the Company (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred upon the Senior Indebtedness and the holders thereof with respect to the Notes and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law):
(1) the holders of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Indebtedness shall first be paid and performed in full and in cash before the Lender shall be entitled to receive payment in full in accordance with the terms of such Senior Indebtedness of the principal thereof, premium, if any, and the interest due thereon (including interest accruing subsequent to retain the commencement of any proceeding for the bankruptcy or reorganization of the Company under any applicable bankruptcy, insolvency or similar law now or hereafter in effect) before the Holders of the Notes are entitled to receive any payment upon the principal of or interest on indebtedness evidenced by the Notes;
(2) any payment or distribution of assets of the Company of any kind or character, whether in respect cash, property or securities, to which the Holders of the Notes would be entitled except for the provisions of this Note. In order Section 2.06, including any such payment or distribution that may be payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinated to implement the payment of the Notes, shall be paid by the liquidating trustee or agent or other Person making such payment or distribution, whether a bankruptcy trustee, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, in accordance with the priorities then existing among holders of Senior Indebtedness for payment of the aggregate amounts remaining unpaid on account of the principal, premium, if any, and interest (including interest accruing subsequent to the commencement of any proceeding for the bankruptcy or reorganization of the Company under any applicable bankruptcy, insolvency or similar law now or hereafter in effect) on the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid, after giving effect to any other concurrent payment or distribution to the holders of such Senior Indebtedness; it being understood that if the Holders of the Notes shall fail to file a proper claim in the form required by any proceeding referred to in this subparagraph (ii) prior to 30 days before the expiration of the time to file such claim or claims, then the holders of Senior Indebtedness are hereby authorized to file an appropriate claim or claims for and on behalf of the Holders of the Notes, in the form required in any such proceeding; and
(3) in the event that, notwithstanding the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name any payment or distribution of assets of the Lender Company of any kind or otherwisecharacter, whether in cash, property or securities, including any such payment or distribution that may demandbe payable or deliverable by reason of the payment of any other indebtedness of the Company being subordinate to the payment of the Notes shall be received by the Trustee or Holders of the Notes before all Senior Indebtedness is paid in full, ▇▇▇ forsuch payment or distribution shall be paid over to the trustee in bankruptcy, collectreceiver, receive and receipt liquidating trustee, custodian, assignee, agent or other Person making payment of assets of the Company for any and all Senior Indebtedness remaining unpaid until all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests Indebtedness shall have been paid and performed in full and in cash. In the event that the Lender receives full, after giving effect to any concurrent payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit holders of the such Senior Interest Holders) forthwithIndebtedness. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated Subject to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of all Senior Indebtedness, the Aggregate Unpaids and termination Holders of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender Notes shall be subrogated to the then existing rights of the holders of Senior Interest HoldersIndebtedness to receive payments or distributions of cash, if any. In accepting this Note, property or securities of the Lender agrees that (i) Company applicable to the Lender shall not, Senior Indebtedness until the Senior Interest has been principal of and interest on the Notes shall be paid and performed in full and in no such payments or distributions to holders of such Senior Indebtedness to which the Holders of the Notes would be entitled except for the provisions of this Section 2.06, of cash, transferproperty or securities otherwise distributable to the holders of Senior Indebtedness shall, pledge or assignas between the Company, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) its creditors, other than the Lender shall notholders of Senior Indebtedness, without and the advance written consent Holders of the Administrative AgentNotes, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue deemed to be effective a payment by the Company to or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any on account of the Senior Interest Holders; (y) notice of Indebtedness. It is understood that the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 2.06 are intended solely for the purpose of defining the relative rights of the LenderHolders of the Notes, on the one hand, and the holders of Senior Interest Holders Indebtedness, on the other hand. Upon any payment or distribution of assets of the Company referred to in this Section 2.06, the Trustee and the Holders of the Notes shall be entitled to rely upon any order or decree of a court of competent jurisdiction in which such proceeding for the insolvency, bankruptcy, receivership, liquidation or other marshalling of the assets and liabilities of the Company is pending or upon a certificate of the liquidating trustee or agent or other Person making any distribution to the Trustee or to the Holders of the Notes for the purpose of ascertaining the Persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount hereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Section 2.06. In the absence of any such liquidating trustee, agent or other Person, the Trustee shall be entitled to rely upon a written notice by a Person representing itself to be a holder of Senior Indebtedness (or a trustee or representative on behalf of such holder) as evidence that such Person is a holder of Senior Indebtedness (or is such a trustee or representative). With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Section 2.06, and no implied covenants or obligations with respect to the holders of Senior Indebtedness shall be read into this Section 2.06 against the Trustee. The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness by reason of the execution of the Base Indenture, this Supplemental Indenture, or any other supplemental indenture entered into pursuant to Section 3.1 or Article IX of the Base Indenture, and shall not be liable to any such holders if it shall mistakenly pay over or distribute to or on behalf of Holders of the Notes or the Company moneys or assets to which any holders of Senior Indebtedness shall be entitled by virtue of this Section 2.06.
(d) If any default in the payment of principal of, or premium, if any, or interest on, any Senior Indebtedness has occurred and is continuing, beyond any applicable grace period, or if an event of default has occurred and is continuing with respect to any Senior Indebtedness, or would occur as a result of a payment of principal of, or premium, if any, or interest on, the Notes being made and that event of default would permit the holders of any Senior Indebtedness (or a trustee on behalf of the holders thereof) to accelerate the maturity thereof, then, unless and until such default or event of default has not been cured, waived and otherwise ceased to exist, no payment or principal of or interest on the Notes, shall be made by the Company.
(e) Nothing contained in the Base Indenture, this Note is intended Supplemental Indenture, any other supplemental indenture entered into pursuant to Section 3.1 or shall Article IX of the Base Indenture, or in any of the Notes shall: (i) impair, as between Borrowerthe Company, its creditors (creditors, other than the holders of Senior Interest Holders) Indebtedness, and Holders of the LenderNotes, Borrower’s obligationthe obligations of the Company, which is are unconditional and absolute, to pay make, or prevent the Lender Company from making, at any time except as provided in clauses (c) or (d) of this Section 2.06, payments of principal of, or interest (including interest accruing subsequent to the principal commencement of and interest on this Note any proceeding for the bankruptcy or reorganization of the Company under any applicable bankruptcy, insolvency, or similar law now or hereafter in effect) on, the Notes, as and when the same shall become due and payable in accordance with the terms hereof or to of the Notes; (ii) affect then the relative rights of the Lender Holders of the Notes and creditors of Borrower (the Company other than the holders of the Senior Interest HoldersIndebtedness; (iii) except as otherwise expressly provided in the Base Indenture, this Supplemental Indenture and the Notes with respect to the limitation on the rights of the Trustee and the Holders of Notes, to accelerate the maturity of the Notes and pursue remedies upon such an acceleration, prevent the Holder of any Notes or the Trustee from exercising all remedies otherwise permitted by applicable law upon default thereunder, subject to the rights, if any, under this Section 2.06 of the holders of Senior Indebtedness in respect of cash, property or securities of the Company received upon the exercise of such remedy; or (iv) prevent the application by the Trustee or any Paying Agent of any moneys deposited with it hereunder to the payment of or on account of the principal of, or interest on, the Notes or prevent the receipt by the Trustee or any Paying Agent of such moneys, if, prior to the third Business Day prior to such deposit, the Trustee or such Paying Agent did not have written notice of any event prohibiting the making of such deposit by the Company.
(f) Each Holder by his acceptance of any Notes authorizes and expressly directs the Trustee on such ▇▇▇▇▇▇’s behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in the Indenture, and appoints the Trustee such ▇▇▇▇▇▇’s attorney-in-fact for such purposes, including, in the event of any termination, winding up, liquidation or reorganization of the Company (whether in bankruptcy, insolvency, receivership, reorganization or similar proceedings or upon an assignment for the benefit of creditors by the Company, a marshalling of the assets and liabilities of the Company) tending toward the liquidation of the property and assets of the Company, the filing of a claim for the unpaid balance of the Notes in the form required in those proceedings. The Company shall give prompt written notice to the Trustee of any fact known to the Company that would prohibit the Company from making any payment to or by the Trustee in respect of the Notes pursuant to the provisions of this Section 2.06. Neither the Trustee nor any Paying Agent shall be charged with the knowledge of the existence of any default or event of default with respect to any Senior Indebtedness or of any other facts that would prohibit the making of any payment to or by the Trustee or the Paying Agent unless and until a Responsible Officer of the Trustee and the Paying Agent, as applicable, shall have received notice in writing at its respective Corporate Trust Office to that effect signed by an Officer of the Company, or by a holder of Senior Indebtedness or a trustee or agent thereof; and prior to the receipt of any such written notice, the Trustee and Paying Agent shall, subject to Article XIV of the Base Indenture, be entitled to assume that no such facts exist; provided that, if the Trustee or the Paying Agent, respectively shall not have received the notice provided for in this Section 2.06 at least two Business Days prior to the date upon which, by the terms of the Indenture, any monies shall become payable for any purpose (including, without limitation, the payment of the principal of or interest on any Note), then, notwithstanding anything herein to the contrary, the Trustee and Paying Agent shall have full power and authority to receive any monies from the Company and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary that may be received by it on or after such prior date except for an acceleration of the Notes prior to such application. The foregoing shall not apply to the Paying Agent if the Paying Agent is the Company. The Trustee and the Paying Agent shall be entitled to rely on the delivery to it of a written notice by a Person representing himself or itself to be a holder of any Senior Indebtedness (or a trustee on behalf of, or agent of, such holder) to establish that such notice has been given by a holder of such Senior Indebtedness or a trustee or agent on behalf of any such holder. In the event that the Trustee or the Paying Agent determines in good faith that any evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment or distribution pursuant to this Section 2.06, the Trustee or the Paying Agent, as applicable, may request such Person to furnish evidence to the reasonable satisfaction of the Trustee or Paying Agent, as applicable, as to the amount of Senior Indebtedness held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Section 2.06 and, if such evidence is not furnished to the Trustee or Paying Agent, as applicable, the Trustee or Paying Agent, as applicable, may defer any payment to such Person pending such evidence being furnished to the Trustee or a judicial determination that such Person has the right to receive such payment.
(g) Notwithstanding the provisions of this Section 2.06 or any other provisions of the Indenture, neither the Trustee nor any Paying Agent shall be charged with knowledge of the existence of any Senior Indebtedness or of any event that would prohibit the making of any payment or moneys to or by the Trustee or such Paying Agent, unless and until a Responsible Officer of the Trustee or such Paying Agent shall have received written notice thereof from the Company or from the holder of any Senior Indebtedness or from the representative of any such holder.
(h) The Trustee shall be entitled to all of the rights set forth in this Section 2.06 in respect of any Senior Indebtedness at any time held by it in its individual capacity to the extent set forth in Section 6.5 of the Base Indenture.
(i) The failure to make a payment pursuant to the Notes by reason of any provision in this Section 2.06 shall not be construed as preventing the occurrence of a default or any Event of Default.
(j) Nothing contained in this Section 2.06 shall apply to the claims of, or payments to, the Trustee under or pursuant to Section 6.7 of the Base Indenture.
(k) The subordination provisions in this Section 2.06 do not apply to amounts due to the Trustee pursuant to other sections of the Indenture, including Section 6.7 of the Base Indenture.
Appears in 1 contract
Subordination. Borrower and, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter describedi) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in With respect to this Note. In order any Liens on ABL Priority Collateral securing the Secured Obligations, such Liens cease to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings have senior “first priority” status pursuant to an ABL Intercreditor Agreement with respect to Liens on such ABL Priority Collateral securing Indebtedness outstanding under any and all claims of the Lender relating to this NoteTerm Facility or any Junior Lien Indebtedness, in each case until the Senior Interests shall have been paid and performed with an aggregate principal amount outstanding in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit excess of the Senior Interest Holders Threshold Amount and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at provisions in any time, ABL Intercreditor Agreement subordinating the Liens on the Collateral securing Indebtedness outstanding under any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all Term Facility or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against BorrowerJunior Lien Indebtedness, in each case so long as there shall not have elapsed one year with an aggregate principal amount outstanding in excess of the Threshold Amount, to the Liens on the Collateral securing the Secured Obligations, (A) any Loan Party contests in writing the validity or enforceability thereof, (B) any court of competent jurisdiction in a final non-appealable order, determines such subordination provisions to be invalid or unenforceable, or (C) such subordination provisions otherwise cease to be valid, binding and one day since enforceable obligations of the Final Payout Date has occurredparties to such ABL Intercreditor Agreement; then, and in every such event (viiother than an event with respect to the Borrowers described in clause (f) or (g) of this Article) and at any time thereafter during the Lender expressly recognizes continuance of such event, the Administrative Agent may, and agrees that at the obligations represented request of the Required Lenders shall, by this Note are not secured by any interest in notice to the Lead Borrower, take any of the assets of Borrowerfollowing actions, including, without limitation, at the same or different times: (i) terminate the Commitments or any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one handAdditional Revolving Commitments, and thereupon such Commitments and/or Additional Revolving Commitments shall terminate immediately, (ii) declare the Senior Interest Holders on the other hand. Nothing contained Revolving Loans then outstanding to be due and payable in this Note is intended whole (or in part, in which case any principal not so declared to or shall impairbe due and payable may thereafter be declared to be due and payable), as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender thereupon the principal of the Revolving Loans so declared to be due and payable, together with accrued interest on this Note as thereon and when all fees and other obligations of the same Borrowers accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by each Borrower and (iii) require that the US Borrower deposits in accordance with the terms hereof or US LC Collateral Account and the Canadian Borrower deposits in the Canadian LC Collateral Account, an additional amount in Cash as reasonably requested by the Issuing Banks (not to affect then relative rights exceed 101% of the Lender relevant face amount) of the then outstanding US LC Exposure (minus the amount then on deposit in the US LC Collateral Account) or Canadian LC Exposure (minus the amount then on deposit in the Canadian LC Collateral Account), as applicable; provided that upon the occurrence of an event with respect to any Borrower described in clause (f) or (g) of this Article, any such Commitments and/or Additional Revolving Commitments applicable to the US Borrower and creditors to the extent such event is applicable to the Canadian Borrower, the Canadian Borrower shall automatically terminate and the principal of Borrower (the Revolving Loans then outstanding, together with accrued interest thereon and all fees and other than obligations of the Senior Interest Holders)Borrowers accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrowers. Upon the occurrence and during the continuance of an Event of Default, the Administrative Agent may, and at the request of the Required Lenders shall, exercise any rights and remedies provided to the Administrative Agent under the Loan Documents or at law or equity, including all remedies provided under the UCC or the PPSA.
Appears in 1 contract
Subordination. Borrower and, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made Anything in respect of this Note are and to the contrary notwithstanding, the indebtedness evidenced by this Note shall remain be subordinate and junior in right of payment payment, to the extent and in the manner hereinafter set forth, to all Aggregate Unpaids Obligations of Payor under the Credit Agreement, [including, without limitation, under Payor’s guarantee of the Obligations under the Credit Agreement] (as defined such Obligations and other indebtedness and obligations in connection with any renewal, refunding, restructuring or refinancing thereof, including interest thereon accruing after the Receivables Purchase Agreement hereinafter describedcommencement of any proceedings referred to in clause (i) owed to Wachovia Bankbelow, National Association, as Administrative Agent (together with its successors whether or not such interest is an allowed claim in such capacityproceeding, the “Administrative Agent”) for itself and various other purchasers from time being hereinafter collectively referred to time party thereto (the “Purchasers” or as “Senior Interest HoldersIndebtedness”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent ):
(as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. i) In the event of any dissolutionEvent of Default, winding upor any insolvency or bankruptcy proceedings, or any receivership, liquidation, readjustment, reorganization or other similar proceedings in connection therewith, relative to Payor or to its creditors, as such, or to its property, or in the event relating to Borrowerof any proceedings for voluntary liquidation, dissolution or other winding up of Payor, whether voluntary or involuntary, partial not involving insolvency or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for then (x) the benefit holders of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale Senior Indebtedness shall be paid in full in cash in respect of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the amounts constituting Senior Interest shall first be paid and performed in full and in cash Indebtedness before the Lender shall be Payee is entitled to receive (whether directly or indirectly), or make any demands for, any payment on account of this Note and to retain (y) until the holders of Senior Indebtedness are paid in full in cash in respect of all amounts constituting Senior Indebtedness, any payment or distribution in respect to this Note. In order which the Payee would otherwise be entitled (other than debt securities of Payor that are subordinated, to implement at least the foregoing, in accepting same extent as this Note, to the Lender hereby irrevocably agrees that payment of all Senior Indebtedness then outstanding (such securities being hereinafter referred to as “Restructured Debt Securities”)) shall be made to the Administrative Agent, in the name holders of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives Indebtedness.
(ii) If any payment or other distribution of any kind character, whether in cash, securities or character from Borrower or from other source whatsoeverproperty (other than Restructured Debt Securities), in respect of this Note, other than as expressly permitted Note shall (despite these subordination provisions) be received by the terms Payee in violation of this Noteclause (i) before all Senior Indebtedness shall have been paid in full in cash, such payment or other distribution shall be received held in trust for the sole benefit of the Senior Interest Holders of, and shall be turned paid over by or delivered to, the Lender holders of Senior Indebtedness (or their representatives), ratably according to the Administrative Agent (respective aggregate amounts remaining unpaid thereon, to the extent necessary to pay all Senior Indebtedness in full in cash. To the fullest extent permitted by law, no present or future holder of Senior Indebtedness shall be prejudiced in its right to enforce the subordination of this Note by any act or failure to act on the part of Payor or by any act or failure to act on the part of such holder or any trustee or agent of such holder. Payee and Payor hereby agree that the subordination of this Note is for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)Creditors, the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of Creditors are obligees under this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, same extent as if their names were written herein as such and the Administrative Agent or may, on behalf of the Purchaser may Creditors, proceed to enforce such the subordination provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other handherein. Nothing contained in this Note the subordination provisions set forth above is intended to to, or shall will, impair, as between Borrowerthe Payor and Payee, its creditors (other than the Senior Interest Holders) and obligations of the Lender, Borrower’s obligationPayor, which is unconditional are absolute and absoluteunconditional, to pay to the Lender Payee the principal of and interest on this Note as and when the same shall become due and *To be inserted if Payor is not the Borrower. payable in accordance with its terms, or is intended to, or will, affect the terms hereof or to affect then relative rights of the Lender Payee and other creditors of Borrower (the Payor other than the holders of Senior Interest Holders)Indebtedness. After the payment in full in cash of the Senior Indebtedness, Payee shall be subrogated to the rights of the holders of the Senior Indebtedness to the extent that payments to which Payee would have been entitled hereunder in the absence of the subordination provisions set forth above were paid instead to the holders of such Senior Indebtedness. For purposes of giving effect to the subrogation rights contemplated in the previous sentence, but only for such purposes, payments made to the holders of the Senior Indebtedness that, in the absence of the subordination provisions set forth above would have been paid instead to Payee, shall not constitute payments of such Senior Indebtedness.
Appears in 1 contract
Subordination. Borrower andPayee understands and agrees that all amounts payable under this Note, whether for principal, interest or expenses, and the enforcement of Payee's rights in respect thereof, shall be subordinate and junior to all Senior Indebtedness (as defined below). If any default occurs in the payment of the principal of or premium or interest on any Senior Indebtedness (whether as a result of the acceleration thereof by its acceptance the holder of any Senior Indebtedness or otherwise) (a “Payment Default”), then during the continuance of such default and until such payment has been made or such default has been cured or waived in writing by the holder of the Senior Indebtedness, no payment of principal or interest or other amount on this Note shall be made by Maker or accepted by Payee and Payee shall not demand or exercise remedies to enforce or collect such amounts (but may accelerate this Note as provided in clauses (b) through (d) of Section 4 of this Note). In addition, Lender hereby acknowledge and agree that any and all payments made in respect no payment of principal or interest or other amount on this Note are shall be made by Maker or accepted by Payee and Payee shall remain subordinate and junior in right of payment not demand or exercise remedies to all Aggregate Unpaids enforce or collect such amount if the following three conditions shall exist: (as defined in the Receivables Purchase Agreement hereinafter describedi) owed to Wachovia Bankany default other than a Payment Default occurs on any Senior Indebtedness, National Association, as Administrative Agent (together with its successors in such capacity, the ii) Payee has received written notice (“Administrative AgentDefault Notice”) for itself of such default from Maker or the holder of such Senior Indebtedness and various other purchasers from time to time party thereto (iii) such default shall not have been cured by Maker or waived in writing by the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part holder of the unpaid principal amount Senior Indebtedness and less than 180 days shall have elapsed after the date of this Note without premium or penalty at any timereceipt by Payee of the Default Notice; provided, however, that interest nothing in this sentence shall be paid on affect the amount repaid ability of Payee to and including the date accelerate this Note as provided in clauses (b) through (d) of repayment. In the event Section 4 of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoingThe term “Senior Indebtedness” shall mean money borrowed (including without limitation all principal, interest (whether or not allowed in accepting this Notea proceeding), the Lender hereby irrevocably agrees that the Administrative Agentfees and all other amounts owing in connection therewith) from, or otherwise represented by notes payable to, a bank or other financial institution or institution in the name business of lending money which is secured in whole or in part by any assets or property of Maker and/or any of its direct or indirect subsidiaries. Any payments received by Payee in violation of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution foregoing provisions shall be received for the sole benefit of the Senior Interest Holders and shall deemed to be turned over held in trust by the Lender to the Administrative Agent (Payee for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights applicable payee of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cashIndebtedness. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) ifPayee agrees, at any time, any payment (in whole or in part) the request of any payee of Senior Interest is rescinded or must be restored or returned by a Indebtedness, to execute such additional documents and instruments which any payee of Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue Indebtedness may reasonably request to be effective or shall be reinstated, carry out the foregoing and other customary subordination provisions. Except as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in Section 5(a) hereof, nothing contained in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained or elsewhere in this Note is intended to or shall impair, impair as between BorrowerMaker, its creditors (other than the holders of Senior Interest Holders) Indebtedness, and Payee, the Lender, Borrower’s obligationobligation of Maker, which is unconditional and absolute, to pay the Lender to Payee the principal of and interest on this Note as and when the same shall become due and payable in accordance with its terms, or is intended to or shall affect the terms hereof or to affect then relative rights of Payee and the Lender and creditors of Borrower (Maker other than the holders of Senior Interest Holders)Indebtedness, nor shall anything herein prevent Payee from exercising all remedies otherwise permitted by applicable law upon the occurrence of an Event of Default under this Note, subject to the rights, if any, under this Section 3 of the holders of Senior Indebtedness in respect of cash or other property of Maker received upon the exercise of any such remedy. Payee shall not be deemed to owe any fiduciary duty to the holders of Senior Indebtedness. In the event that Maker fails to make a payment on account of principal of or interest on or other amounts due in respect of this Note by reason of any provision of this Section 3, such failure shall constitute an Event of Default hereunder, and the fact that such failure resulted from the application of this Section 3 shall not be construed as preventing the occurrence of, or mitigating, such Event of Default.
Appears in 1 contract
Sources: Securities Purchase Agreement (Cold Spring Capital Inc.)
Subordination. Borrower and(a) All Junior Obligations, by its acceptance of this Note, Lender hereby acknowledge and agree that any and all payments made in claims, demands, rights and remedies of the Junior Lender with respect of this Note thereto, are and shall remain continue at all times to be subject, subordinate and junior in right of payment and priority to the Senior Obligations including, without limitation, all Aggregate Unpaids (as defined interest on the Senior Obligations at the rate stated in the Receivables Purchase Senior Loan Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event filing by or against Borrower of a petition under any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, similar law whether or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (not such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent interest is allowable in any such Bankruptcy Proceedings with respect proceeding to any and all claims the date of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon indefeasible payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement Senior Obligations (the “Final Payout DatePostpetition Interest”). The term “Junior Obligations,” as used in this Agreement, shall mean and include the Lender shall be subrogated to principal amount of and the then existing rights of the Senior Interest Holderspremium, if any. In accepting this , and interest on all indebtedness and other monetary obligations of Borrower to the Junior Lender under the Merger Agreement, the Junior Agreement and the Junior Note, the Lender agrees that (i) the Lender shall nottogether with all fees, until the Senior Interest has been paid costs and performed in full and in cashexpenses relating thereto, transferwhether direct or contingent, pledge now or assignhereafter existing, due or to become due to, or commence legal proceedings held or to enforce be held by the Junior Lender, whether created directly or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned acquired by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings assignment or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, all principal of and premium, if any, and interest on the Junior Note (including extensions, modifications, refinancings, renewals and refundings thereof) and any Receivables other note or Related Security. The provisions notes or any other agreement between Borrower and the Junior Lender, including but not limited to fees, costs and/or expenses owed or owing to the Junior Lender under or by reason of the Merger Agreement, including but not limited to (i) the Termination Fee (as defined in the Merger Agreement), (ii) the Transaction Fees (as defined in the Merger Agreement) and (iii) any other Parent Damages (as defined in the Merger Agreement)(the fees and damages set forth in the foregoing clauses (i), (ii) and (iii), collectively, the “Merger Agreement Fees and Damages”). The term “Senior Obligations,” as used in this Section 3 are intended solely for Agreement, shall mean and include the purpose principal amount of defining and the relative rights premium, if any, and interest (including Postpetition Interest) and all other amounts on all of the Obligations including, without limitation, Collateral Management Fees, Unused Line Fees, the Restatement Fee, Yield Maintenance and amounts due under the Equity Participation Fee Agreement, and all other fees, costs and expenses relating thereto, whether direct or contingent, now or hereafter existing, due or to become due to, or held or to be held by, the Senior Lender, on the one handwhether created directly or acquired by assignment or otherwise (including extensions, modifications, refinancings, renewals and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holdersrefundings thereof).
Appears in 1 contract
Sources: Senior Subordination Agreement (NationsHealth, Inc.)
Subordination. All indebtedness, liabilities and obligations of a Borrower andto the other Borrowers, by its acceptance or any claims or causes of this Noteaction of a Borrower against the other Borrowers, Lender shall be and hereby acknowledge and agree that any and all payments are made in respect of this Note are and shall remain subordinate subject to, postponed, subordinated and junior in right of payment to the satisfaction and payment in full of all Aggregate Unpaids of the Obligations of each Borrower to the Agent and Lenders arising under this Agreement, the Notes and any other Loan Documents or in any other manner arising or existing, and any payment by a Borrower or other distribution of property of a Borrower to the other Borrowers in payment of any indebtedness, liabilities or obligations (the "Intercompany Debt") prior to satisfaction or payment in full of the Obligations, while the Loans or Commitments therefor are outstanding, shall be received in trust by such Borrower and promptly turned over to the Agent, provided, however, that so long as defined no Event of Default has occurred or is continuing, repayment of loans and advances in accordance with the Receivables Purchase Agreement hereinafter described) owed terms hereof by any Borrower to Wachovia Bankany other Borrower shall not be prohibited or postponed. Each Borrower will mark ▇▇▇ books and records and cause any promissory note or other instrument evidencing the Intercompany Debt to clearly indicate that the Intercompany Debt is subordinated hereby to the Obligations. Each Borrower will, National Associationupon demand of the Agent, cause any Intercompany Debt not evidenced by a promissory note or other instrument to be so evidenced and, as Administrative Agent (together security for the Obligations, endorse with its successors in recourse such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” notes or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject instruments to the terms of this Section 3, have Agent and otherwise assign to the right to pay Agent any and all or Intercompany Debt and any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repaymentall security therefor. In the event of any dissolutionreceivership, winding upinsolvency, liquidationbankruptcy, readjustmentreorganization, reorganization arrangement, composition, readjustment or other similar event relating to proceedings are commenced or instituted by or against a Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Obligations shall first be paid and performed in full and in cash before the Lender any Borrower shall be entitled to receive and to or retain any payment or distribution in respect to this Note. In the Intercompany Debt, and, in order to implement the foregoing, (a) all payments and distributions of any kind or character, whether in accepting this Notecash, property or securities in respect of the Lender Intercompany Debt to which a Borrower would be entitled shall be made directly to the Agent, (b) each Borrower shall promptly file a claim or claims, in the form required in such proceedings, for the full outstanding amount of the Intercompany Debt, and shall use its best efforts to cause such claim or claims to be approved and all payments and other distributions in respect thereof to be made directly to the Agent, and (c) each Borrower hereby irrevocably agrees that the Administrative AgentAgent may, in its sole discretion, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders).110 80
Appears in 1 contract
Sources: Credit Agreement (Stericycle Inc)
Subordination. Borrower and, by its acceptance of this Note, (a) The Subordinated Lender hereby acknowledge agrees that all its right, title and agree that any interest in and all payments made in respect of this Note are and to the Subordinated Obligations shall remain be subordinate and junior in right of payment to all Aggregate Unpaids the rights of the Senior Lenders in respect of the Senior Obligations, including the payment of principal, premium (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”if any), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, interest (including interest accruing during the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event pendency of any dissolutionbankruptcy, winding upinsolvency, liquidation, readjustment, reorganization receivership or other similar event relating proceeding, regardless of whether allowed or allowable in such proceeding), fees, expense and reimbursement obligations indemnification obligations and all other amounts payable under the Credit Agreement, any other Credit Document, or in respect thereof.
(b) The Borrower and the Subordinated Lender hereby agree that, notwithstanding any provision to Borrowerthe contrary in any agreement governing or evidencing Subordinated Obligations, no payment (whether directly, by purchase, redemption or exercise of any rights of setoff or otherwise and whether mandatory or voluntary) in respect of the Subordinated Obligations, whether voluntary of principal, interest or involuntary, partial or completeotherwise, and whether in bankruptcycash, insolvency securities or receivership proceedingsother property, shall be made by or upon an assignment for the benefit of creditors, or any other marshaling on behalf of the assets and liabilities of Borrower or received, accepted or demanded, directly or indirectly, by or on behalf of the Subordinated Lender at any sale time prior to the payment in full in cash of all the Senior Obligations.
(c) Upon any distribution of all or substantially all of the assets of the Borrower or upon any dissolution, winding up, liquidation or reorganization of the Borrower, whether in bankruptcy, insolvency, reorganization, arrangement or receivership proceedings or otherwise, or upon any assignment for the benefit of creditors or any other marshalling of the assets and liabilities of the Borrower, or otherwise:
(such proceedings being herein collectively called “Bankruptcy Proceedings”), i) the Senior Interest Lenders shall first be paid and performed entitled to receive indefeasible payment in full and in cash of the Senior Obligations (whenever arising) before the Subordinated Lender shall be entitled to receive and any payment on account of the Subordinated Obligations of the Borrower, whether of principal, interest or otherwise; and
(ii) any payment by, or on behalf of, or distribution of the assets of; the Borrower of any kind or character, whether in cash, securities or other property, to retain any which the Subordinated Lender would be entitled except for the provisions of this Section 1 shall be paid or delivered by the Person making such payment or distribution (whether a trustee in respect bankruptcy, a receiver, custodian or liquidating trustee or otherwise) directly to this Notethe Agent, for the benefit of the Senior Lenders, until the indefeasible payment in full in cash of all Senior Obligations. In order The Subordinated Lender agrees not to implement ask, demand, ▇▇▇ for or take or receive from the foregoingBorrower in cash, in accepting this Notesecurities or other property or by setoff, purchase or redemption (including, without limitation, from or by way of collateral), payment of all or any part of the Lender hereby irrevocably Subordinated Obligations to the extent prohibited by the preceding sentence, and agrees that in connection with any proceeding involving the Administrative AgentBorrower under any bankruptcy, insolvency reorganization, arrangement, receivership or similar law (i) the Agent is irrevocably authorized and empowered (in its own name or in the name of the Subordinated Lender or otherwise), may but shall have no obligation, to demand, ▇▇▇ for, collectcollect and receive every payment or distribution referred to in the preceding sentence and give acquittance therefor and to file claims and proofs of claim and take such other action (including, receive without limitation, voting the Subordinated Obligations and receipt enforcing any security interest or other lien securing payment of the Subordinated Obligation) as the Agent may deem necessary or advisable for the exercise or enforcement of any of the rights or interests of the Senior Lenders and all (ii) the Subordinated Lender shall duly and promptly take such payments action as the Collateral Agent, if any, may request to (A) collect amounts in respect of the Subordinated Obligations for the account of the Senior Lenders and to file appropriate claims or distributionsproofs of claim in respect of the Subordinated Obligations, (B) execute and filedeliver to such Collateral Agent such irrevocable powers of attorney, prove and vote assignments or consent other instruments as such Collateral Agent may request in any order to enable such Bankruptcy Proceedings with respect Collateral Agent to enforce any and all claims with respect to, and any security interests and other liens securing payment of, the Subordinated Obligations and (C) collect and receive any and all payments or distributions which may be payable or deliverable upon or with respect to the Subordinated Obligations. A copy of this Subordination Agreement may be filed with any court as evidence of the Lender relating to this NoteSenior Lenders’ right, in each case until the Senior Interests shall have been paid power and performed in full and in cash. authority thereunder.
(d) In the event that the Lender receives any payment by, or other on behalf of, or distribution of the assets of, the Borrower of any kind or character from Borrower character, whether in cash, securities or from other source whatsoeverproperty, in respect and whether directly, by purchase, redemption, exercise of any right of setoff or otherwise, shall be received by or on behalf of the Subordinated Lender or any Affiliate thereof at a time when such payment is prohibited by this Note, other than as expressly permitted by the terms of this NoteSubordination Agreement, such payment or other distribution shall be received held by the Subordinated Lender in trust (segregated from other property of the Subordinated Lender) for the sole benefit of the Senior Interest Holders of, and shall forthwith be turned paid over by to, the Lender to the Administrative Agent (Agent, for the benefit of the Senior Interest HoldersLenders, until the indefeasible payment in full in cash of all Senior Obligations.
(e) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated Subject to the then existing rights prior indefeasible payment in full in cash of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”)Obligations, the Subordinated Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and Lenders to receive payments or distributions in cash, transfersecurities or other property of the Borrower to the Senior Obligations until all amounts owing on the Senior Obligations shall be indefeasibly paid in full in cash, pledge and, as between and among the Borrower, its creditors (other than the Senior Lenders) and the Subordinated Lender, no such payment or assign, or commence legal proceedings distribution made to enforce or collect the Senior Lenders by virtue of this Note or any rights in respect hereof; (ii) Subordination Agreement that otherwise would have been made to the Subordinated Lender shall not, without be deemed to be a payment by the advance written consent Borrower on account of the Administrative AgentSubordinated Obligations, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since it being understood that the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; paragraph (vie) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the LenderSubordinated Lender and the Senior Lenders.
(f) Without the prior written consent of the Agent, on the one handBorrower shall not give, or permit to be given, and the Senior Interest Holders Subordinated Lender shall not receive, accept or demand, (i) any security of any nature whatsoever for the Subordinated Obligations on any property or assets, whether now existing or hereafter acquired, of the other hand. Nothing contained in this Note is intended to Borrower or shall impairany Subsidiary of the Borrower or (ii) any guarantee, as between of any nature whatsoever, by the Borrower or any Subsidiary of the Borrower, its creditors (of the Subordinated Obligations other than any guarantee subordinated to the Senior Interest HoldersObligations on terms substantially identical to (and no less favorable in any significant respect to the Senior Lender than) those hereof. The Subordinated Lender agrees that all the proceeds of any such security or guarantee shall be subject to the provisions hereof with respect to payments and other distributions in respect of the LenderSubordinated Obligations.
(g) Any and all instruments or records now or hereafter creating or evidencing the Subordinated Obligations, Borrower’s obligationwhether upon refunding, which is unconditional and absoluteextension, renewal, refinancing, replacement or otherwise, shall contain the following legend: “Notwithstanding anything contained herein to pay the Lender contrary, neither the principal of and nor the interest on on, nor any other amounts payable in respect of, the indebtedness created or evidenced by this Note as and when the same instrument or record shall become due or be paid or payable, except to the extent permitted under the Subordination Agreement, dated [ ], [ ] 20[ ], among, inter alia, [ ] and[ ], which Subordination Agreement is incorporated herein with the same effect as if fully set forth herein.”
(h) The Subordinated Lender agrees that, except for claims submitted in any proceeding contemplated by Section 2(c) hereof, it will not take any action to cause the Subordinated Obligations to become payable prior to their scheduled maturity or exercise any remedies or take any action or proceeding to enforce the Subordinated Obligations if the payment of such Subordinated Obligation is then prohibited by this Subordination Agreement, and the Subordinated Lender further agrees not to file, or to join with any other creditors of the Borrower in filing, any petition commencing any bankruptcy, insolvency, reorganization, arrangement or receivership proceeding or any assignment for the benefit of creditors against or in respect of the Borrower or any other marshalling of the assets and liabilities of the Borrower (provided, that this prohibition shall in no event be construed so as to limit the Subordinated Lender’s right to cause the Subordinated Obligations to become payable prior to their scheduled maturity if all the outstanding Loans in respect of the Borrower under the Credit Agreement have been declared due and payable in accordance with the terms hereof or prior to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holderstheir scheduled maturity dates).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Oncor Electric Delivery Co LLC)
Subordination. Borrower and(a) Each Pledgor executing this Agreement covenants and agrees that the payment of all Indebtedness and any principal or interest (including interest which accrues after the commencement of any case or proceeding in bankruptcy, or for the reorganization of any Credit Party) thereon, owing by any Credit Party or any of its acceptance of this NoteSubsidiaries to such Pledgor, Lender hereby acknowledge and agree that including any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids intercompany trade payables or royalty or licensing fees (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacitycollectively, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest HoldersIntercompany Obligations”), pursuant that certain Receivables Purchase Agreement dated as is subordinated, to the extent and in the manner provided in this Section 9, to the prior payment in full of December 21, 2009 by and among Borrower, all Obligations (other than contingent indemnification Obligations to the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent extent no claim giving rise thereto has been asserted) (as amended, restated or otherwise modified from time to timeherein, the “Receivables Purchase AgreementSenior Obligations”). Borrower shall) and that the subordination is for the benefit of Agent and the other Secured Parties, subject and Agent may enforce such provisions directly.
(b) Each Pledgor executing this Agreement hereby (i) authorizes Agent to demand specific performance of the terms of this Section 39, whether or not any other Pledgor shall have the right to pay all or complied with any part of the unpaid principal amount of this Note without premium or penalty provisions hereof applicable to it, at any time; provided, that interest shall be paid time when an Event of Default has occurred and is continuing and (ii) irrevocably waives (to the maximum extent permitted by any Requirement of Law) any defense based on the amount repaid adequacy of a remedy at law, which might be asserted as a bar to and including the date such remedy of repayment. In the event specific performance.
(c) Upon any distribution of assets of any Credit Party in any dissolution, winding up, liquidation, readjustment, liquidation or reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and (whether in bankruptcy, insolvency or receivership proceedings, proceedings or upon an assignment for the benefit of creditors, creditors or any otherwise):
(i) Agent and other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest Secured Parties shall first be paid and performed in full and in cash before the Lender shall be entitled to receive payment in full in cash of the Senior Obligations before any Pledgor is entitled to receive any payment on account of the Intercompany Obligations, unless otherwise permitted by the Loan Agreement.
(ii) Any payment or distribution of assets of any Pledgor of any kind or character, whether in cash, property or securities, to which any other Pledgor would be entitled except for the provisions of this Section 9(c), shall be paid by the liquidating trustee or agent or other Person making such payment or distribution directly to Agent, to the extent necessary to make payment in full of all Senior Obligations (other than contingent indemnification obligations as to which no claim has been asserted) remaining unpaid after giving effect to any concurrent payment or distribution or provisions therefore to Agent and to retain the other Secured Parties.
(iii) In the event that notwithstanding the foregoing provisions of this Section 9(c), any payment or distribution of assets of any Credit Party or any of its Subsidiaries of any kind or character, whether in respect to this Note. In order to implement the foregoingcash, in accepting this Noteproperty or securities, the Lender hereby irrevocably agrees that the Administrative Agent, in the name shall be received by any Pledgor on account of the Lender Intercompany Obligations before all Senior Obligations (other than contingent indemnification obligations as to which no claim has been asserted) are paid in full, such payment or otherwise, may demand, ▇▇▇ for, collect, receive distribution shall be received and receipt held in trust for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect shall be paid over to any and all claims Agent for application to the payment of the Lender relating Senior Obligations (other than contingent indemnification obligations as to this Note, in each case which no claim has been asserted) until all of the Senior Interests Obligations (other than contingent indemnification obligations as to which no claim has been asserted) shall have been paid and performed in full and in cash. In the event that the Lender receives full, after giving effect to any concurrent payment or distribution or provision therefore to Agent and other distribution Secured Parties.
(d) No right of any kind or character from Borrower or from Agent and the other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note Secured Parties or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, other present or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) future holders of any Senior Interest is rescinded Obligations to enforce the subordination provisions herein shall at any time in any way be prejudiced or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions impaired by any act or failure to act on the part of the Senior Interest Holders; (y) notice of the existenceany Pledgor or by any act or failure to act, creationin good faith, non-payment or non-performance of all or by any of the Senior Interests; and (z) all diligence in enforcement, collection or protection ofsuch holder, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in noncompliance by any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance Pledgor with the terms hereof hereof, regardless of any knowledge thereof which any such holder may have or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)be otherwise charged with.
Appears in 1 contract
Subordination. Borrower and(a) Each Guarantor agrees that the payment by the Borrower, by its acceptance any other Loan Party or any Obligor of this Note, Lender hereby acknowledge and agree that any and all payments made indebtedness in respect favor of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto Guarantor (the “Purchasers” or “Senior Interest HoldersSubordinated Lender”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by ) shall be subordinated and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and prior payment in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of all amounts (other than unmatured indemnity obligations which by their express terms survive the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid Credit Documents and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings which no claim has been made) payable by the Borrower, such other Loan Party or otherwise), these provisions shall continue to be effective such Obligor under the Credit Agreement or shall be reinstatedthis Guaranty, as the case may be, as though and any other Credit Document to which the Borrower, such payment had not been madeother Loan Party or such Obligor is a party (“Senior Debt”) upon the terms of this Section; provided, however, that unless an Event of Default has occurred and is continuing, such Loan Party or Obligor may make payments in the ordinary course in respect of any such indebtedness.
(ivb) Upon any distribution of assets of the Lender waives: (x) notice Borrower, a Guarantor or an Obligor to creditors upon a liquidation or dissolution of acceptance of these provisions by the Borrower, such Guarantor or such Obligor or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Borrower, or such Guarantor or such Obligor or its property, to the extent that any of the foregoing would constitute an Event of Default under the Credit Agreement, (i) the Administrative Agent and the Lenders shall be entitled to receive payment in full of all Senior Interest Holders; (y) notice Debt before the Subordinated Lender shall be entitled to receive any payment of principal of or interest on or any other amounts in respect of Indebtedness of the existenceBorrower, creation, non-or such Guarantor or such Obligor in favor of the Subordinated Lender (the “Subordinated Debt”); and (ii) until payment or non-performance of all or any in cash in full of the Senior Interests; Debt and (z) all diligence the lending commitments under the Credit Agreement shall have terminated, any distribution of assets of any kind or character to which the Subordinated Lender would otherwise be entitled shall be paid by the Borrower, such Guarantor or such Obligor or by any receiver, trustee in enforcementbankruptcy, collection liquidating trustee, agents or protection ofother person making such payment or distribution to, or realization uponif received by the Borrower, the Senior Interestssuch Guarantor or such Obligor, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made shall be held for the benefit of and shall be forthwith paid or delivered to, the Senior Interest HoldersAdministrative Agent for distribution to the Administrative Agent and the Lenders, as applicable.
(c) If the Subordinated Lender does not file proper claims or proofs of claim in the form required in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Borrower, a Loan Party or an Obligor or its property prior to 45 days before the expiration of the time to file such claims, then (a) upon the request of the Administrative Agent, the Subordinated Lender shall file such claims and proofs of claim in respect of this instrument and execute and deliver such powers of attorney, assignments and other instruments as are required to enable the Administrative Agent and the Lenders to enforce any and all claims upon or in respect of the Subordinated Debt and to collect and receive any and all payments or distributions which may be payable or deliverable at any time upon or in respect of Subordinated Debt, and (b) whether or not the Subordinated Lender shall take the action described in the preceding clause (a) the Administrative Agent and the Lenders shall nevertheless be deemed to have such powers of attorney as may be necessary for them to file appropriate claims and proofs of claim and otherwise exercise the powers described above.
(d) No right of the Administrative Agent or the Purchaser may proceed any Lender to enforce such provisions on behalf the terms of each this Section shall be impaired by any act or failure to act by the Borrower, a Loan Party or an Obligor. Neither the terms of such Persons; (vi) this Section nor the Lender will not (A) institute againstrights of the Administrative Agent and the Lenders hereunder shall be affected by any extension, join any other Person in instituting against renewal or take any action, direct or indirect, in furtherance or contemplation modification of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupmentthe terms of, or assert the granting of any counterclaim, against Borrower, security in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitationrespect of, any Receivables Senior Debt or Related Security. The provisions set forth any exercise or nonexercise of any right, power or remedy with respect thereto.
(e) Nothing in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall (i) impair, as between the Borrower, its creditors (other than the Senior Interest Holders) such Loan Party or such Obligor and the Subordinated Lender, the obligation of the Borrower’s obligation, or such Loan Party or such Obligor, which is unconditional absolute and absoluteunconditional, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable Subordinated Debt in accordance with its terms; (ii) affect the terms hereof or to affect then relative rights of the Subordinated Lender and creditors of Borrower (the Borrower, or such Loan Party or such Obligor other than the Senior Interest Holders)Administrative Agent and the Lenders; or (iii) prevent the Subordinated Lender from exercising its available remedies upon an event of default under the Subordinated Debt, subject to the rights of the Administrative Agent and the Lenders to receive cash, property or other assets otherwise payable to the Subordinated Lender to the extent set forth in this Section.
Appears in 1 contract
Subordination. Borrower and(a) On the terms and conditions set forth below, by its acceptance Subordinated Creditor’s right to payment and performance of this Note, Lender hereby acknowledge and agree that any the Subordinated Debt and all payments made liens and security interests securing the Subordinated Debt are hereby subordinated to Senior Creditor’s right to full payment and performance of the Senior Debt and all liens and security interests securing the Senior Debt. Subject to and except as set forth in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; providedSubordinated Creditor shall not ask, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collecttake or receive from Borrower, receive and receipt for any and all such payments by setoff or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect other manner, the whole or any part of any monies which may now or hereafter be owing by Borrower to Subordinated Creditor, or be owing by any and all claims other person to Subordinated Creditor under a guaranty or similar instrument, on account of the Lender relating to this NoteSubordinated Debt, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives nor any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received collateral security for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrowerforegoing, including, without limitation, any Receivables personal property collateral granted to Subordinated Creditor pursuant to the Subordinated Documents, unless and until the Senior Debt shall have been fully paid in cash and all commitments to extend credit under the Senior Creditor Agreement shall have been terminated (the temporary reduction of outstanding obligations, liabilities and indebtedness of Borrower to Senior Creditor not being deemed to constitute full payment or Related Securitysatisfaction thereof).
(b) Subordinated Creditor shall not create, maintain or perfect any security interest in or lien on any property of Borrower, other than the security interests and liens granted in favor of Subordinated Creditor in certain of Borrower's personal property under and as described in the Subordinated Documents, which liens and security interests are junior and subordinated to the security interests and liens securing the Senior Debt. The provisions set forth If, notwithstanding the foregoing, any lien shall be created or shall arise (including, without limitation, the security interests granted in this Section 3 are intended solely for favor of Subordinated Creditor pursuant to the purpose Subordinated Documents), whether by operation of defining the relative rights law or otherwise, and may from time to time exist in favor of Subordinated Creditor in or on any property of Borrower to secure all or any portion of the LenderSubordinated Debt, then any liens granted by Borrower in favor of Senior Creditor to secure the Senior Debt shall in all respects be first and senior liens, superior to any liens in favor of Subordinated Creditor securing the Subordinated Debt, including, without limitation, the security interests granted in favor of Subordinated Creditor pursuant to the Subordinated Documents notwithstanding (i) the date, manner or order of perfection of the security interests and liens granted in favor of Senior Creditor, (ii) the provisions of the UCC or any other applicable laws or decisions, (iii) the provisions of any contract in effect between Senior Creditor, on the one hand, and Borrower or any affiliate thereof, on the other, and (iv) whether Senior Creditor or any agent or bailee thereof holds possession of any part or all of the Collateral. In the event Subordinated Creditor has or obtains possession of any such property or forecloses upon or enforces its lien upon any such property, whether by judicial action or otherwise, then all such property shall be held in trust for the benefit of Senior Creditor and promptly delivered in kind to Senior Creditor or, if not deliverable in kind, all cash or non-cash proceeds and profits of such property shall be held in trust for the benefit of Senior Creditor and paid over to Senior Creditor, without any deduction or offset, unless and until all of the Senior Interest Holders on Debt shall have been paid in cash in full and all commitments to extend credit under the other handSenior Creditor Agreement shall have been terminated. Nothing Without limiting the generality of the foregoing, (i) Subordinated Creditor acknowledges and agrees not to request or require a pledge by Borrower of its equity securities in 2314505 Ontario Inc., Apex Systems Integrators Inc. or any successor thereof (whether by amalgamation or otherwise) (collectively, the “APEX Shares”), nor will Subordinated Creditor request or require the possession or control by Subordinated Creditor of the APEX Shares in conjunction therewith and (ii) Senior Creditor acknowledges and agrees not to request or require a pledge by Borrower of the APEX Shares, nor will Senior Creditor request or require the possession or control by Senior Creditor of the APEX Shares in conjunction therewith.
(c) The subordination contained in this Note Agreement is intended to define the rights and duties of Subordinated Creditor and Senior Creditor; it is not intended that any third party (including any bankruptcy trustee, receiver, or debtor-in-possession) shall impairbenefit from it. If the effect of the subordination contained in this Agreement would be to give any third party a priority status to which that party would not otherwise be entitled, as between Borrowerthen that provision shall, its creditors (other than to the Senior Interest Holders) extent necessary to avoid that priority, be given no effect and the Lender, Borrower’s obligation, which is unconditional rights and absolute, to pay the Lender the principal priorities of Senior Creditor and interest on this Note as and when the same Subordinated Creditor shall become due and payable be determined in accordance with applicable law and this Agreement.
(d) Notwithstanding anything in this Agreement to the terms hereof contrary, nothing herein shall be deemed to subordinate, waive or to affect then relative restrict the contractual rights of Subordinated Creditor under any warrants or capital stock that the Lender Borrower may issue to Subordinated Creditor from time to time, nor shall anything herein restrict the performance of Borrower’s obligations under such warrants or with respect to such capital stock.
(e) In the event of the occurrence of an Insolvency Event (as hereinafter defined), (i) this Agreement shall remain in full force and creditors effect in accordance with Section 510(a) of Borrower the United States Bankruptcy Code, and (other than ii) the Senior Interest Holders)Collateral shall include, without limitation, all Collateral arising during or after any such Insolvency Event.
Appears in 1 contract
Sources: Subordination Agreement (DecisionPoint Systems, Inc.)
Subordination. Any indebtedness of any Borrower now or hereafter owing to the other Borrower is hereby subordinated to the Obligations, whether heretofore, now or hereafter created, and whether before or after notice of termination hereof, and, by its acceptance following the occurrence and during the continuation of this Notean Event of Default, Lender hereby acknowledge and agree that any and all payments made in respect of this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). no Borrower shall, subject without the prior consent of Lender, pay in whole or in part any of such indebtedness nor will any such Borrower accept any payment of or on account of any such indebtedness at any time while such Borrower remains liable hereunder. At the request of Lender, after the occurrence and during the continuance of an Event of Default, each Borrower shall pay to the terms of this Section 3, have the right to pay Lender all or any part of such subordinated indebtedness and any amount so paid to Lender at its request shall be applied to payment of the unpaid principal amount Obligations. Each payment on the indebtedness of this Note without premium or penalty at any time; provided, that interest Borrower to the other Borrower received in violation of any of the provisions hereof shall be deemed to have been received by the other Borrower as trustee for Lender and shall be paid over to Lender immediately on account of the amount repaid Obligations, but without otherwise affecting in any manner any such Borrower's liability under any of the provisions of this Agreement. Each Borrower agrees to and including file all claims against the date other Borrower in any bankruptcy or other proceeding in which the filing of repayment. In the event claims is required by law in respect of any dissolution, winding up, liquidation, readjustment, reorganization or indebtedness of the other similar event relating Borrower to such Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and all of any such Borrower's rights thereunder. If for any reason any such Borrower fails to retain any payment or distribution file such claim at least thirty (30) days prior to the last date on which such claim should be filed, Lender, as such Borrower's attorney-in-fact, is hereby authorized to do so in respect to this Note. In order to implement the foregoingBorrowers' name or, in accepting this NoteLender's discretion, the Lender hereby irrevocably agrees that the Administrative Agentto assign such claim to, and cause a proof of claim to be filed in the name of the Lender of, Lender's nominee. In all such cases, whether in administration, bankruptcy or otherwise, may demandthe person or persons authorized to pay such claim shall pay to Lender the full amount payable on the claim in the proceeding, ▇▇▇ for, collect, receive and receipt to the full extent necessary for that purpose any and such Borrower hereby assigns to Lender all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect Borrower's rights to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by to which such Borrower otherwise would be entitled. If the Senior Interest Holders in respect of this Noteamount so paid is greater than any such Borrower's liability hereunder, while any Bankruptcy Proceedings are pending Lender will pay the Lender shall not be subrogated excess amount to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)party entitled thereto.
Appears in 1 contract
Sources: Credit and Security Agreement (Microtel International Inc)
Subordination. Borrower andSECTION 12.01. Anything in this Indenture or any Note to the contrary notwithstanding, the indebtedness evidenced by its acceptance the Notes shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness of the Company whether outstanding at the date of this NoteIndenture or incurred after the date of this Indenture:
(1) In the event of any insolvency or bankruptcy proceedings, Lender hereby acknowledge and agree any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Company or to its creditors, as such, or to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of all principal and interest on all Senior Indebtedness before the Holders are entitled to receive any payment on account of principal or interest upon the Notes, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the rights conferred in this Indenture upon the Senior Indebtedness and the holders thereof with respect to the subordinated indebtedness represented by the Notes and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in payment thereof any and all payments made payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such proceedings in respect of this Note the Notes, except securities which are and shall remain subordinate and junior in right of payment to the payment of all Aggregate Unpaids Senior Indebtedness then outstanding.
(as defined in the Receivables Purchase Agreement hereinafter described2) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of that any dissolution, winding up, liquidation, readjustment, reorganization Note is declared or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, becomes due and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling payable before its expressed maturity because of the assets and liabilities occurrence of Borrower or any sale of all or substantially all a default hereunder (under circumstances when the provisions of the assets of Borrower foregoing clause (such proceedings being herein collectively called “Bankruptcy Proceedings”1) shall not be applicable), the holders of the Senior Interest shall first be paid Indebtedness outstanding at the time such Note so becomes due and performed in full and in cash before the Lender payable because of such occurrence of such default shall be entitled to receive payment in full of all principal and interest on all Senior Indebtedness before the Holders are entitled to retain receive any payment on account of the principal or distribution in respect to this Note. In order to implement interest upon the Notes; and
(3) Without limiting the foregoing, in accepting this Noteno payment of principal, premium or interest shall be made upon the Lender hereby irrevocably agrees that Notes during the Administrative Agent, continuance of any default in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution making of any kind required payment under any sinking fund or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (analogous fund created for the benefit of the any Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note Indebtedness or any rights other default in respect hereof; (ii) the Lender shall not, without the advance written consent payment of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection principal of, or realization uponinterest on, the any Senior InterestsIndebtedness then outstanding, whether by lapse of time, by declaration, by call or any thereof, notice of prepayment or any security therefor; (v) these provisions constitute a continuing offer from the otherwise. No present or future holder of this Note Senior Indebtedness shall be prejudiced in his right to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit enforce subordination of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured Notes by any interest in any act or failure to act on the part of the assets of Borrower, including, without limitation, any Receivables or Related SecurityCompany. The provisions set forth in of this Section 3 are intended SECTION 12.01 ARE solely for the purpose of defining the relative rights of the Lender, holders of Senior Indebtedness on the one hand, and the Senior Interest Holders of the Notes on the other hand. Nothing contained in this Note is intended to or , and nothing herein shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) Company and the LenderHolder of any Note, Borrower’s obligationthe obligation of the Company, which is unconditional and absolute, to pay to the Lender Holder the principal of principal, premium, if any, and interest on thereon in accordance with its terms, nor shall anything herein prevent the Holder of a Note from exercising all remedies otherwise permitted by applicable law or hereunder upon default hereunder, subject to the rights, if any, under this SECTION 12.01 of holders of Senior Indebtedness to receive cash, property or securities otherwise payable or deliverable to the holders of the Notes. The Company agrees, for the benefit of the holders of Senior Indebtedness, that in the event that any Note as and when the same shall become is declared due and payable in accordance with the terms hereof or to affect then relative rights before its expressed maturity because of the Lender occurrence of a default hereunder (a) the Company will give prompt notice in writing of such happening to the holders of Senior Indebtedness and creditors (b) all Senior Indebtedness shall forthwith become immediately due and payable upon demand, regardless of Borrower (the expressed maturity thereof. Senior Subordinated Indebtedness issued hereunder shall rank on a parity with all other than senior subordinated indebtedness issued under other indentures between the Company and the Trustee.
SECTION 12.02. By accepting a Note, the Holder authorizes and directs the Trustee to take in the Holder's behalf such action as may be necessary or appropriate to effectuate the subornation as provided in this ARTICLE XII and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 12.03. No right of any present or future holder of any Senior Interest Holders)Indebtedness to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act in good faith by any such holder, or any waiver, modification or amendment of the provisions relating to Senior Indebtedness, or any release of security for Senior Indebtedness regardless of any knowledge thereof any such holder may have or be otherwise charged with.
Appears in 1 contract
Sources: Indenture (HSBC Finance CORP)
Subordination. Each Subordinated Creditor hereby subordinates (i) all present and future Indebtedness of the Borrower and, by its acceptance of this Note, Lender hereby acknowledge to such Subordinated Creditor and agree that (ii) any and all payments made obligations or liabilities of the Borrower and any rights of such Subordinated Creditor now existing or hereafter arising, absolute or contingent, arising by contract, at law or otherwise, with respect to dividends payable on the Capital Stock, the purchase, redemption or other acquisition by the Borrower of such Capital Stock and any other amount payable to the holders of such Capital Stock as such (collectively the “Subordinated Indebtedness”), to any and all Indebtedness now or hereafter owing by the Borrower (including any interest accruing after the commencement of any proceeding by or against the Borrower under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, and any other interest that would have accrued but for the commencement of such proceeding, whether or not any such interest is allowed as a claim enforceable against the Borrower in such proceeding) to the Senior Creditor (the “Senior Indebtedness”) to the extent and in the manner hereinafter set forth, and such Subordinated Creditor agrees not to demand, accept or receive any payment in respect of this Note the Subordinated Indebtedness, including, without limitation, any payment received through the exercise of any right of setoff, counterclaim or cross claim, or any collateral therefor, or any right to cause the Borrower to redeem, purchase, assume or otherwise retire the Subordinated Indebtedness, in contravention hereof:
(i) In the event of any insolvency or bankruptcy proceedings, or any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Borrower or to its creditors, as such, or to its properties, or in the event of any proceedings for voluntary liquidation, dissolution or other winding up of the Borrower, whether or not involving insolvency or bankruptcy, then the Senior Creditor shall be entitled to receive payment in full in cash of all of the Senior Indebtedness before such Subordinated Creditor is entitled to receive any payment in respect of the Subordinated Indebtedness (except securities which are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bank, National Association, as Administrative Agent (together with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”Indebtedness then outstanding), pursuant and to that certain Receivables Purchase Agreement dated as of December 21, 2009 by and among Borrower, end the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part holder of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender Indebtedness shall be entitled to receive and to retain for application in payment thereof any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of the Lender relating to this Note, in each case until the Senior Interests shall have been paid and performed in full and in cash. In the event that the Lender receives any payment or other distribution of any kind or character from Borrower character, whether in cash or from other source whatsoeverproperty or securities, which may be payable or deliverable in any such proceedings in respect of the Subordinated Indebtedness; and
(ii) No amount shall be paid (except in securities which are subordinate and junior in right of payment to all Senior Indebtedness then outstanding, it being understood that all such securities shall constitute “Subordinated Indebtedness” hereunder), whether in cash, property, or securities or otherwise, and the Subordinated Creditors will not exercise any rights with respect to the Capital Stock, in respect of this Notethe Subordinated Indebtedness, other than except as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Credit Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all or any of the Senior Interests; and (z) all diligence in enforcement, collection or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions set forth in this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders)Pledge Agreement.
Appears in 1 contract
Sources: Affiliate Subordination Agreement (Monitronics International Inc)
Subordination. Borrower andThe System acknowledges and agrees that Emeritus and EP I have secured the consent of Meditrust to the assignment of the Economic Interest on the specific condition that any payments to the System due with respect to the Economic Interest are and will be subordinate to the obligations of EP I and Emeritus to Meditrust, by its acceptance and to the rights of this NoteMeditrust against Emeritus and EP I, Lender hereby acknowledge under the Lease and agree the Lease Documents (as that term is defined in the Lease). Accordingly, the System acknowledges and agrees for the direct benefit of Meditrust (on which Meditrust may rely) as follows:
(a) It has been provided with a true and correct copy of the Lease and the Lease Documents and it has reviewed the same and is familiar with the terms and conditions thereof.
(b) The payment of any and all payments made in respect of amounts due to the System under this Note are and shall remain subordinate and junior in right of payment to all Aggregate Unpaids (as defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia Bankor under any other agreement executed pursuant hereto, National Associationincluding, as Administrative Agent (together with its successors in such capacitybut not limited to, the “Administrative Agent”Economic Interest Assignment, shall be and hereby is subordinated and made junior to the complete and prior payment and performance as and when due of all fees, indebtedness, liabilities, obligations and other amounts due or owing from or by Emeritus or EP I under the Lease Documents; provided, however, that for so long as (A) for itself and various other purchasers from (i) there is no Event of Default under the Lease or event outstanding which, with the giving of notice or the passage of time to time party thereto or both, would constitute an Event of Default under the 2
(c) In the “Purchasers” or “Senior Interest Holders”), pursuant that certain Receivables Purchase Agreement dated as event the System receives any payments in contravention of December 21, 2009 by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”). Borrower shall, subject to the terms of this Section 3Agreement, have whether or not it has been provided with notice of the right to pay all existence of such Event of Default or any part other event by Meditrust or Emeritus, it shall receive and hold those payment in trust for the benefit of Meditrust and it shall immediately remit the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid same to and including the date of repayment. Meditrust.
(d) In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntaryinvoluntary insolvency, partial or complete, and whether in bankruptcy, insolvency or receivership proceedingsreceivership, or upon an custodianship, readjustment of debt, arrangement, composition, assignment for the benefit of creditors, creditors or other similar proceedings relative to Emeritus or EP I or any other marshaling of their property (the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”"Triggering Events"), the Senior Interest shall first be paid and performed in full then and in cash before the Lender shall be entitled to receive and to retain any such event: (i) any payment or distribution of any character, which would otherwise (but for the terms hereof be payable or deliverable in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name of the Lender amounts owed to the System shall be paid or otherwise, may demand, ▇▇▇ for, collect, receive and receipt for delivered directly to Meditrust until any and all such payments or distributions, and file, prove and vote or consent in any such Bankruptcy Proceedings with respect to any and all claims of amounts due under the Lender relating to this Note, in each case until the Senior Interests Lease Documents shall have been paid in full; (ii) upon the written request of Meditrust, the System shall provide, enforce and performed endeavor to obtain payment of the aggregate outstanding amount of all unpaid payments due and payable to the System or thereafter becoming due and payable from Emeritus or EP I to the System and shall turn over to Meditrust, in full and in cashprecisely the form received, any such unpaid payment of any kind or character on account of such amounts owed to the System for application to the payment of all amounts then due by Emeritus or EP I under the Lease Documents. In the event that the Lender receives System fails to take any payment such action requested by Meditrust, Meditrust, as attorney in fact for the System for the limited purpose of enforcing and obtaining such payments, with full power of substitution, may take such action on behalf of the System, but for the use and benefit of Meditrust. This limited power of attorney, being coupled with an interest, shall be irrevocable until all of the amounts due by Emeritus or EP I under the Lease Documents are fully paid and performed. The power of attorney conferred on Meditrust is provided solely to protect the interests of Meditrust and shall not impose any duty on Meditrust to exercise any such power and Meditrust, as such attorney-in-fact, shall not be liable for any act, omission, error in judgment or mistake of law, except as the same may result from its gross negligence, breach of fiduciary duty to System or wilful misconduct; (iii) System shall execute and deliver to Meditrust all such further instruments confirming the authorization referred to in the foregoing clauses (i) and (ii) and any powers of attorney specifically confirming 3 the rights of Meditrust arising hereunder and all such proofs of claim, assignments of claim and other distribution of instruments and shall take all such other actions as may be requested by Meditrust in order to enable Meditrust to enforce any kind and all claims upon or character from Borrower or from other source whatsoever, in respect of this Noteany and all amounts due by Emeritus or EP I under the Lease Documents and to collect any and all payment or distributions which may be payable or deliverable to System after the occurrence of the aforementioned Triggering Events at any time upon, other than as expressly permitted by the terms of this Noteor with respect to, such payment or other distribution shall be received amounts.
(e) The subordination provisions provided for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender herein shall not be subrogated affected, modified or impaired in any manner or to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that any extent by: (i) any renewal, replacement, amendment, extension, substitution, revision, consolidation, modification or termination of any of the Lender shall notLease Documents, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent validity or enforceability of any of the Administrative AgentLease Documents, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) ifthe release, at any timesale, any payment (exchange or surrender, in whole or in part) , by Meditrust of any Senior Interest collateral which it is rescinded holding as security for the performance by EP I or must be restored Emeritus of its or returned by a Senior Interest Holder (whether in connection with Bankruptcy Proceedings or otherwise)their obligations under the Lease Documents, these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment exercise or non-performance exercise of all any right, power or remedy in respect of any of amounts due under the Senior Interests; and (z) all diligence in enforcement, collection Lease or protection of, or realization upon, the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders ofany waiver, consent, release, indulgence, extension, renewal, modification, delay or who continue to hold, Senior Interests, and these provisions are made for the benefit other action or inaction or omission in respect of the Senior Interest Holdersamounts now or hereafter due from Emeritus or EP I under the Lease, in each instance whether or not the System had notice or knowledge thereof or consents thereto. Any and all rights granted by Emeritus and EP I to the System under this Agreement or under any other documents executed pursuant hereto, may at the option of Meditrust be terminated in the event that upon the occurrence of an Event of Default under the Lease, Meditrust elects either to terminate the Lease or to re-take possession of the Ridgeland Facility; provided, however, that concurrently with such termination, the rights granted to Emeritus and its subsidiaries, including EP I, under the License Agreement shall also terminate, it being understood and agreed that Meditrust shall have no right to succeed to the rights granted to Emeritus thereunder even in the event it retakes possession of the Ridgeland Facility, and the Administrative Agent Initial Payment and the Subsequent Payment, if applicable, shall be returned to the System upon written demand therefor.
(g) Meditrust shall have no liability to the System for any payments due to the System under this Agreement or the Purchaser may proceed under any document executed pursuant to enforce such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute againstthis Agreement, join any other Person in instituting against or take any action, direct or indirect, in furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year it being understood and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees agreed that the obligations represented by this Note are not secured by any interest in any System's sole recourse for such payments shall be solely to Emeritus or EP I, as appropriate.
(h) In consideration for the agreements of the assets of Borrower, including, without limitation, any Receivables or Related Security. The provisions System set forth in this Section 3 are intended solely 3, Emeritus and EP I do hereby agree to provide the System with copies of any and all notices of default which may be provided by Meditrust to either Emeritus or EP I under any of the Lease Documents; provided, however, that the System acknowledges and agrees for the purpose benefit of defining Emeritus, EP I and Meditrust, that the relative rights giving of such notice shall not be construed in any manner as granting the Lender, on System any right to cure any such default under the one hand, and the Senior Interest Holders on the other hand. Nothing contained in this Note is intended to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof Lease Documents or to otherwise interfere with or affect then relative the rights granted to Meditrust under the Lease Documents upon the occurrence of the Lender and creditors of Borrower (other than the Senior Interest Holders).a default thereunder. 4
Appears in 1 contract
Sources: Master Agreement (Emeritus Corp\wa\)
Subordination. Borrower andNotwithstanding anything herein contained, until the obligations secured by its acceptance the Bank One Pledge (including any refinancings thereof) have been paid in full in cash (including interest accruing after the commencement of this Note, Lender hereby acknowledge and agree that any bankruptcy or insolvency proceeding regardless of whether it is an allowed claim in such proceeding) and all payments made in respect of this Note are commitments under the Revolving Credit Agreement and shall remain subordinate and junior in right of payment to all Aggregate Unpaids Term Credit Agreement (as said terms are defined in the Receivables Purchase Agreement hereinafter described) owed to Wachovia BankBank One Pledge, National Association, and as Administrative Agent (together the same may be assigned and amended in connection with its successors in such capacity, the “Administrative Agent”) for itself and various other purchasers from time to time party thereto (the “Purchasers” or “Senior Interest Holders”refinancing thereof), pursuant that certain Receivables Purchase Agreement dated as have terminated, (a) all Liens of December 21, 2009 Pledgee in the Collateral shall be and hereby are subordinated for all purposes and in all respects to the Liens created by and among Borrower, the Purchasers and the Administrative Agent, BorgWarner Inc. as collection agent Bank One Pledge (as amended, restated or otherwise modified from time to time, the “Receivables Purchase Agreement”same may be assigned and amended in connection with the refinancing thereof). Borrower shall, subject to the terms of this Section 3, have the right to pay all or any part of the unpaid principal amount of this Note without premium or penalty at any time; provided, that interest shall be paid on the amount repaid to and including the date of repayment. In the event of any dissolution, winding up, liquidation, readjustment, reorganization or other similar event relating to Borrower, whether voluntary or involuntary, partial or complete, and whether in bankruptcy, insolvency or receivership proceedings, or upon an assignment for the benefit of creditors, or any other marshaling of the assets and liabilities of Borrower or any sale of all or substantially all of the assets of Borrower (such proceedings being herein collectively called “Bankruptcy Proceedings”), the Senior Interest shall first be paid and performed in full and in cash before the Lender shall be entitled to receive and to retain any payment or distribution in respect to this Note. In order to implement the foregoing, in accepting this Note, the Lender hereby irrevocably agrees that the Administrative Agent, in the name Collateral, regardless of the Lender time, manner or otherwise, may demand, ▇▇▇ for, collect, receive order of perfection of any such Liens and receipt for any and all such payments or distributions, and file, prove and vote or consent (b) Pledgee shall not in any such Bankruptcy Proceedings event exercise any rights and remedies granted under this Agreement or applicable law with respect to any and all claims the Collateral. Pledgee agrees that it will not at anytime contest the validity, perfection, priority or enforceability of the Lender relating to this Noteindebtedness represented by either the Revolving Credit Agreement or Term Credit Agreement, or the Liens of Collateral Agent in each case until the Senior Interests shall have been paid and performed in full and in cashCollateral securing such indebtedness. In the event that Collateral Agent releases or agrees to release any of its Liens in the Lender receives any payment or other distribution of any kind or character from Borrower or from other source whatsoever, in respect of this Note, other than as expressly permitted by the terms of this Note, such payment or other distribution shall be received for the sole benefit of the Senior Interest Holders and shall be turned over by the Lender to the Administrative Agent (for the benefit of the Senior Interest Holders) forthwith. Notwithstanding any payments or distributions received by the Senior Interest Holders in respect of this Note, while any Bankruptcy Proceedings are pending the Lender shall not be subrogated to the then existing rights of the Senior Interest Holders in respect of the Senior Interests until the Senior Interests have been paid and performed in full and in cash. Upon payment in full of the Aggregate Unpaids and termination of the commitments under the Receivables Purchase Agreement (the “Final Payout Date”), the Lender shall be subrogated to the then existing rights of the Senior Interest Holders, if any. In accepting this Note, the Lender agrees that (i) the Lender shall not, until the Senior Interest has been paid and performed in full and in cash, transfer, pledge or assign, or commence legal proceedings to enforce or collect this Note or any rights in respect hereof; (ii) the Lender shall not, without the advance written consent of the Administrative Agent, commence, or join with any other Person in commencing, any Bankruptcy Proceedings with respect to Borrower until at least one year and one day shall have passed since the Final Payout Date shall have occurred; (iii) if, at any time, any payment (in whole or in part) of any Senior Interest is rescinded or must be restored or returned by a Senior Interest Holder (whether Collateral in connection with Bankruptcy Proceedings the sale or otherwise), these provisions shall continue to be effective or shall be reinstated, as the case may be, as though such payment had not been made; (iv) the Lender waives: (x) notice of acceptance of these provisions by any of the Senior Interest Holders; (y) notice of the existence, creation, non-payment or non-performance of all other disposition thereof or any of the Senior Interests; Collateral is sold or retained pursuant to a foreclosure or similar action, Pledgee shall (or shall cause its agent to) promptly execute and (z) all diligence in enforcement, collection or protection of, or realization upon, deliver to Collateral Agent such termination statements and releases as Collateral Agent shall reasonably request to effect the Senior Interests, or any thereof, or any security therefor; (v) these provisions constitute a continuing offer from the holder of this Note to all Persons who become the holders of, or who continue to hold, Senior Interests, and these provisions are made for the benefit release of the Senior Interest Holders, and the Administrative Agent or the Purchaser may proceed to enforce Liens of Pledgee in such provisions on behalf of each of such Persons; (vi) the Lender will not (A) institute against, join any other Person in instituting against or take any action, direct or indirect, in Collateral. In furtherance or contemplation of instituting against, Borrower any bankruptcy, insolvency, winding up, dissolution, receivership, conservatorship or other similar proceeding or action or(B) exercise any right of set-off or recoupment, or assert any counterclaim, against Borrower, in each case so long as there shall not have elapsed one year and one day since the Final Payout Date has occurred; and (vii) the Lender expressly recognizes and agrees that the obligations represented by this Note are not secured by any interest in any of the assets foregoing, Pledgee hereby irrevocably appoints Collateral Agent its attorney-in-fact, with full authority in the place and stead of BorrowerPledgee and in the name of Pledgee or otherwise, including, without limitation, to execute and deliver any Receivables document or Related Security. The provisions set forth in instrument which Pledgee may be required to deliver pursuant to this Section 3 are intended solely for the purpose of defining the relative rights of the Lender, on the one hand, and the Senior Interest Holders on the other hand5.11. Nothing contained in this Note is intended [Signature Pages to or shall impair, as between Borrower, its creditors (other than the Senior Interest Holders) and the Lender, Borrower’s obligation, which is unconditional and absolute, to pay the Lender the principal of and interest on this Note as and when the same shall become due and payable in accordance with the terms hereof or to affect then relative rights of the Lender and creditors of Borrower (other than the Senior Interest Holders).Follow]
Appears in 1 contract