Terms of Subordination. Anything in this Indenture to the contrary notwithstanding, the indebtedness evidenced by Subordinated Securities of any series, or any Coupons appertaining thereto, shall be subordinate and junior in right of payment, to the extent and in the manner hereafter set forth, to all Senior Debt of the Issuer, whether outstanding at the date of this Indenture or incurred after the date of this Indenture but not to any other indebtedness of the Issuer other than Senior Debt. (1) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Issuer 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 Issuer, whether or not involving insolvency or bankruptcy, then the holders of Senior Debt shall be entitled to receive payment in full of all principal and interest on all Senior Debt before the holders of the Subordinated Securities of any series, or any Coupons appertaining thereto, are entitled to receive any payment on account of principal or interest thereon, 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 Debt and the holders thereof with respect to the subordinated indebtedness represented by the Subordinated Securities of such series, or any Coupons appertaining thereto, and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Debt shall be entitled to receive for application in payment thereof any 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 the Subordinated Securities of such series, or any Coupons appertaining thereto, except securities which are subordinate and junior in right of payment to the payment of all Senior Debt then outstanding; and (2) in the event that pursuant to any provision of the Indenture or the Subordinated Securities of any series, or any Coupons appertaining thereto, the Subordinated Securities of such series are declared or otherwise become due and payable before their expressed maturity because of the occurrence of an Event of Default hereunder or otherwise (under circumstances when the provisions of the foregoing clause (1) shall not be applicable), the holders of the Senior Debt outstanding at the time the Subordinated Securities of such series, or any Coupons appertaining thereto, so become due and payable shall be entitled to receive payment in full of all principal of and interest on all Senior Debt before the holders of the Subordinated Securities of such series, or any Coupons appertaining thereto, are entitled to receive any payment due solely by reason of such acceleration; and (3) in the event of any default in the payment of any Senior Debt and during the continuance of any such default, no amount shall be paid, whether in cash, property, securities, or otherwise, in respect of the principal of or interest of the Subordinated Securities of any series, or any Coupons appertaining thereto, if either (a) notice of such default in writing has been given to the Issuer by any holder or holders of any Senior Debt; provided that judicial proceedings shall be commenced with respect to such default within 30 days thereafter, or (b) judicial proceedings shall be pending in respect of such default. No present or future holder of Senior Debt shall be prejudiced in his right to enforce subordination of the Subordinated Securities of any series, or any Coupons appertaining thereto, by any act or failure to act on the part of the Issuer. The provisions of this Article Sixteen are solely for the purpose of defining the relative rights of the holders of Senior Debt on the one hand, and the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto, on the other hand, and nothing herein shall impair, as between the Issuer and the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, the obligation of the Issuer, which is unconditional and absolute, to pay to the Holder thereof the principal thereof and (to the extent legally enforceable) interest on overdue principal thereon in accordance with the terms of the Subordinated Securities of such series, or any Coupons appertaining thereto, nor shall anything in this Article Sixteen prevent the Trustee or the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, from exercising all remedies otherwise permitted by applicable law or under this Indenture upon default under this Indenture, subject to the rights, if any, under this Article Sixteen of holders of Senior Debt to receive cash, property or securities otherwise payable or deliverable to the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto. The Issuer agrees, for the benefit of the holders of Senior Debt, that in the event that any of the Subordinated Securities of such series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of a default under this Indenture (a) the Issuer will give prompt notice in writing of such happening to the holders of Senior Debt and (b) all Senior Debt shall forthwith become immediately due and payable upon demand regardless of the expressed maturity thereof. No right of any present or future holder of any Senior Debt 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 by any noncompliance by the Issuer with the terms, provisions and covenants of this Article Sixteen, regardless of any knowledge thereof any such holder may have or be charged with.
Appears in 1 contract
Sources: Indenture (Itt Corp /Nv/)
Terms of Subordination. Anything in this Indenture Notwithstanding anything to the contrary notwithstandingcontrary, the indebtedness evidenced by Subordinated Securities of any series, or any Coupons appertaining thereto, shall be subordinate and junior in right of payment, to the extent and in the manner hereafter set forth, to all Senior Debt obligations of the Issuer, whether outstanding at the date of this Indenture or incurred after the date of this Indenture but not to any other indebtedness of the Issuer other than Senior Debt.
(1) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Issuer 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 Issuer, whether or not involving insolvency or bankruptcy, then the holders of Senior Debt shall be entitled to receive payment in full of all principal and interest on all Senior Debt before the holders of the Subordinated Securities of any series, or any Coupons appertaining thereto, are entitled to receive any payment on account of principal or interest thereon, 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 Debt and the holders thereof with respect to the subordinated indebtedness represented by the Subordinated Securities of such series, or any Coupons appertaining thereto, and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Debt shall be entitled to receive for application in payment thereof any 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 Company in respect of the Subordinated Securities of such series, or any Coupons appertaining thereto, except securities which are this Note will be subordinate and junior in right of payment to the payment in full in cash of any and all existing and future Senior Debt then outstanding; and
Indebtedness (2as defined below) on the terms set forth in the event that pursuant this Section 4.1. Upon any distribution to any provision creditors of the Indenture Company in a liquidation or dissolution of the Subordinated Securities of any seriesCompany, in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, or in an assignment for the benefit of creditors or in any Coupons appertaining thereto, the Subordinated Securities of such series are declared or otherwise become due and payable before their expressed maturity because marshaling of the occurrence of an Event of Default hereunder or otherwise Company's assets and liabilities: (under circumstances when the provisions of the foregoing clause (1a) shall not be applicable), the holders of the Senior Debt outstanding at the time the Subordinated Securities of such series, or any Coupons appertaining thereto, so become due and payable shall Indebtedness will be entitled to receive payment in full of all principal obligations due in respect of and such Senior Indebtedness (including interest on all after the commencement of any bankruptcy proceeding at the rate specified in the applicable Senior Debt Indebtedness) before the holders Holder of the Subordinated Securities of such series, or any Coupons appertaining thereto, are this Note will be entitled to receive any payment due solely by reason of such accelerationor distribution with respect to this Note; and
and (3b) until all obligations with respect to Senior Indebtedness (as provided in the event of any default in the payment of any Senior Debt and during the continuance of any such default, no amount shall be paid, whether in cash, property, securities, or otherwise, in respect of the principal of or interest of the Subordinated Securities of any series, or any Coupons appertaining thereto, if either clause (a) notice above) are paid in full, any distribution to which the Holder would be entitled but for this Article 4 will be made to holders of such default Senior Indebtedness, except that the Holder may receive common stock, par value $0.01 per share, of the Company ("Common Stock") in writing has been given exchange for all or a portion of this Note (to the Issuer by extent provided in Section 5.2 below). In the event any holder or such distribution is paid to the holders of any Senior Debt; provided that judicial proceedings Indebtedness instead of to the Holder of this Note, then upon payment in full in cash of all Senior Indebtedness, the Holder of this Note shall be commenced with respect subrogated to such default within 30 days thereafter, or (b) judicial proceedings shall be pending in respect of such default. No present or future holder of Senior Debt shall be prejudiced in his right to enforce subordination of the Subordinated Securities of any series, or any Coupons appertaining thereto, by any act or failure to act on the part of the Issuer. The provisions of this Article Sixteen are solely for the purpose of defining the relative rights claims of the holders of Senior Debt on the one hand, and the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto, on the other hand, and nothing herein shall impair, as between the Issuer and the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, the obligation of the Issuer, which is unconditional and absolute, to pay to the Holder thereof the principal thereof and (Indebtedness to the extent legally enforceableof such distribution. Payments may not be made hereunder, and no rights or remedies may be exercised by the Holder in respect of this Note, to the extent, but only to the extent, (i) interest any such payment or the exercise of such rights or remedies by the Holder would result in a default or acceleration under any material agreement or instrument with a third party unaffiliated with the Company with respect to Senior Indebtedness, or (ii) any default exists under any material agreement or instrument with a third party unaffiliated with the Company with respect to Senior Indebtedness. The restrictions on overdue principal thereon payment and the exercise of rights and remedies in accordance the preceding sentence shall not be applicable (i) to the Company's obligation to make cash payments to the holder of the Note in connection with a Change of Control; and (ii) to the Company's obligation to issue Common Stock as payment for the Note at any time when the Company may pay the Note by exchange of Common Stock as provided herein. Accordingly, any delay in any cash payment under this Note (other than in connection with a Change of Control) resulting from the restrictions contained in this Article 4 shall not result in any breach or default under this Note so long as the Company provides in lieu of cash payment, payment of the Note by exchange of its Common Stock if and to the extent that payment in Common Stock is available under the terms of the Subordinated Securities of this Note at such seriestime. The Holder, whether upon original issue or any Coupons appertaining theretoupon transfer or assignment hereof, nor by its acceptance hereof agrees that this Note shall anything in this Article Sixteen prevent the Trustee or the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, from exercising all remedies otherwise permitted by applicable law or under this Indenture upon default under this Indenture, be subject to the rights, if any, under this Article Sixteen of holders of Senior Debt to receive cash, property or securities otherwise payable or deliverable to the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto. The Issuer agrees, for the benefit of the holders of Senior Debt, that in the event that any of the Subordinated Securities of such series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of a default under this Indenture (a) the Issuer will give prompt notice in writing of such happening to the holders of Senior Debt and (b) all Senior Debt shall forthwith become immediately due and payable upon demand regardless of the expressed maturity thereof. No right of any present or future holder of any Senior Debt 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 by any noncompliance by the Issuer with the terms, provisions and covenants of this Article Sixteen4. If the Company shall determine to create senior debt securities, regardless senior credit facilities or other senior financing arrangements (including without limitation senior equipment financing) and, in order to consummate such transactions, the creditor(s) thereto request that the Holder execute and deliver to such creditor(s) other instruments, documents or agreements evidencing the subordination of any knowledge thereof any this Note to such holder may have securities, facilities or arrangements, the Holder agrees to cooperate with the Company and to take, or cause to be charged withtaken, all action, and do, or cause to be done, all things, reasonably necessary, or reasonably requested by the applicable senior creditor(s) for such securities, facilities or arrangements, to carry out and effectuate the intent of the subordination terms of this Article 4; provided such undertakings are not otherwise inconsistent with the intent of the parties in this Note.
Appears in 1 contract
Sources: Note Purchase Agreement (Aksys LTD)
Terms of Subordination. Anything in this Indenture Subject to Section 3.04(c), ---------------------- the Series B Certificates and all other sums payable to the contrary notwithstanding, holders thereof under the indebtedness evidenced by Subordinated Securities of any series, or any Coupons appertaining thereto, Operative Agreements shall be subordinate and junior in right of payment, payment to the Series A Certificates and all other sums payable to the holders thereof under the Operative Agreements to the extent and in the manner hereafter hereinafter set forth, to all Senior Debt :
(a) No payment or distribution shall be made on or in respect of the Issuerprincipal of, whether outstanding at interest (including, without limitation interest accruing after the date commencement of any proceeding of the type referred to in Section 4.02(g) or (h) or Section 14.5 of any Lease (for purposes of this Section 2.17, a "Case")) on, or any other amount payable in respect of, the Series ---- B Certificates, nor shall any payment or distribution be made on or in respect of any indemnity or other claim or obligation owing to any holder of a Series B Certificate under any Operative Agreements, in either case, except directly to the Indenture or incurred after the date Trustee for application as expressly provided in Article III of this Indenture but not to any other indebtedness of the Issuer other than Senior DebtIndenture.
(1b) In the event of any insolvency or bankruptcy proceedingsCase, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Issuer 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 Issuer, whether or not involving insolvency or bankruptcy, then the holders of Senior Debt shall be entitled to receive payment in full of all principal and interest on all Senior Debt before the holders of the Subordinated Securities of any series, or any Coupons appertaining thereto, are entitled to receive any payment on account of principal or interest thereon, 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 Debt and the holders thereof with respect to the subordinated indebtedness represented by the Subordinated Securities of such series, or any Coupons appertaining thereto, and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Debt shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash cash, property, stock or property or securities, obligations which may be payable or deliverable in any such proceedings on or in respect of any Series B Certificate or other sum owing to any holder of a Series B Certificate under the Subordinated Securities of such series, Operative Agreements shall be paid or any Coupons appertaining thereto, except securities which are subordinate and junior in right of payment delivered directly to the payment of all Senior Debt then outstanding; and
(2) in the event that pursuant Indenture Trustee for distribution to any provision of the Indenture or the Subordinated Securities of any series, or any Coupons appertaining thereto, the Subordinated Securities of such series are declared or otherwise become due and payable before their expressed maturity because of the occurrence of an Event of Default hereunder or otherwise (under circumstances when the provisions of the foregoing clause (1) shall not be applicable), the holders of the Senior Debt outstanding at Series A Certificates as provided in Article III. In the time event that, notwithstanding the Subordinated Securities of foregoing, any such series, payment or any Coupons appertaining thereto, so become due and payable distribution shall be entitled to receive payment received by the holder (other than from the Indenture Trustee as provided in full Article III) of TRUST INDENTURE any Series B Certificate before the amount of all principal of and interest on all Senior Debt before Series A Certificates (including, without limitation, interest accruing after the commencement of a Case) and all other sums owing to the holders of the Subordinated Securities Series A Certificates under the Operative Agreements is paid in full in cash, or provision made for such payment, in accordance with its terms, such payment or distribution shall be held in trust for and paid over or delivered to the Indenture Trustee for distribution to the holders of the Series A Certificates as provided in Article III.
(c) By acceptance of its Series B Certificate, each holder of a Series B Certificate hereby irrevocably authorizes and empowers the holders of the Series A Certificates, or the Indenture Trustee acting on their behalf, to demand, ▇▇▇ for, collect and receive every payment or distribution made on or in respect of the Series B Certificates or other sums owing to the holders thereof under the Operative Agreements in any Case, and to file claims and take such seriesother proceedings, in the holders' of the Series A Certificates own name or in the name of the holders of the Series B Certificates or otherwise, as the holders of the Series A Certificates or the Indenture Trustee acting on their behalf may deem necessary or advisable for the enforcement of the provisions hereof. By the acceptance of its Series B Certificate, each holder of a Series B Certificate agrees duly and promptly to take such action as may be requested by the holders of the Series A Certificates or the Indenture Trustee acting on their behalf to collect the indebtedness evidenced by its Series B Certificate owing to it or otherwise owing to it under the Operative Agreements for the account of the holders of the Series A Certificates and/or to file appropriate proofs of claim in respect to such indebtedness, and to execute and deliver to the holders of the Series A Certificates or the Indenture Trustee acting on their behalf on demand such powers of attorney, proofs of claim, assignments of claim or proofs of claim, or other instruments as may be requested by the holders of the Series A Certificates or the Indenture Trustee acting on their behalf to enforce any and all claims upon or with respect to its Series B Certificate owing to it or otherwise owing to it under the Operative Agreements.
(d) Except as otherwise expressly provided in this Indenture, the holders of the Series A Certificates or the TRUST INDENTURE Indenture Trustee acting on their behalf may, at any time and from time to time, without the consent of or notice to the holders of the Series B Certificates, without incurring responsibility to such holders and without impairing or releasing any of the rights of the holders of the Series A Certificates, or any Coupons appertaining thereto, are of the obligations of the holders of the Series B Certificates hereunder:
(i) to the extent it is entitled to receive do so hereunder, sell, exchange, release or otherwise deal with all or any payment due solely part of any property by reason of such accelerationwhomsoever mortgaged or pledged to secure, or howsoever securing, the Series A Certificates;
(ii) to the extent it is entitled to do so hereunder, exercise or refrain from exercising any rights against the Owner Trustee or the Lessee or any other Person; and
(3iii) to the extent it is entitled to do so hereunder and the same are applied in accordance with Article III, apply any sums, by whomsoever paid or however realized, to the Series A Certificates.
(e) By the acceptance of its Series B Certificate, each holder of a Series B Certificate agrees that in the event that such holder shall receive any payment on its Series B Certificate or otherwise owing to it under the Operative Agreements which it is not entitled to receive under this Section 2.17 or Article III, it will hold any amount so received in trust for the holders of the Series A Certificates and will forthwith turn over such payment to the Indenture Trustee on behalf of the holders of Series A Certificates in the form received to be applied as provided in Article III.
(f) By the acceptance of its Series B Certificate, each holder of a Series B Certificate agrees that it may not commence any action or proceeding against the Owner Trustee the Owner Participant, the Lessee or any other Person obligated in respect of any default Operative Agreements to recover all or any part of the principal or interest on its Series B Certificate or any other sum owing to it under any Operative Agreements or join with any creditor, unless the holders of TRUST INDENTURE the Series A Certificates shall also join, in bringing any such action or proceeding.
(g) By the acceptance of its Series B Certificate, each holder of a Series B Certificate hereby irrevocably authorizes and empowers the Indenture Trustee on behalf of the holders of the Series A Certificates to vote the full amount of the indebtedness evidenced by its Series B Certificate owing to it or otherwise owing to it under the Operative Agreements in any Case.
(h) No payment or distribution of assets to which the holders of the Series B Certificates would have been entitled except for the provisions of this Section 2.17 or Article III and which shall have been received by the holders of the Series A Certificates shall, as between the obligor thereon, its creditors, and the holder of the Series B Certificates, be deemed to be a payment by the obligor to the holders of the Series A Certificates for or on account of the Series A Certificates, and from and after the payment in full in cash of any Senior Debt all Series A Certificates and during all other amounts owing to the continuance holders thereof under the Operative Agreements, the holders of any such default, no amount the Series B Certificates shall be paid, whether in cash, property, securities, subrogated to the then or otherwise, thereafter existing rights of the holders of Series A Certificates to receive payments or distributions of assets of the relevant obligor made on or in respect of the Series A Certificates or such other amounts until the principal of of, and interest on, the Series B Certificates and all other amounts owing to the holders thereof under the Operative Agreements shall be paid in full, and no such payments or interest such other amounts or distributions to the holders of the Subordinated Securities Series B Certificates of any seriescash, property or any Coupons appertaining theretosecurities, if either (a) notice of such default in writing has been given which otherwise would be payable or distributable to the Issuer by any holder or holders of any Senior Debt; provided that judicial proceedings shall be commenced with respect to such default within 30 days thereafterthe Series A Certificates, or (b) judicial proceedings shall be pending in respect shall, as between the obligor thereon, its creditors other than the holders of such default. No present or future the Series A Certificates, and the holder of Senior Debt shall the Series B Certificates, be prejudiced in his right deemed to enforce subordination be a payment by the relevant obligor to the holder of the Subordinated Securities of any series, or any Coupons appertaining thereto, by any act or failure to act Series B Certificates on the part of the Issuer. account thereof.
(i) The provisions of this Section 2.17 and Article Sixteen III are solely for the purpose of defining the relative rights of the holders of Senior Debt Series A Certificates on the one hand, and the Holders holders of the Subordinated Securities of such series, or any Coupons appertaining thereto, Series B Certificates on the other hand, and nothing herein shall shall, except as TRUST INDENTURE otherwise provided herein, impair, as between the Issuer Owner Trustee, the Owner Participant, the Lessee and the Holder of any holders of the Subordinated Securities of such series, or any Coupons appertaining theretoSeries B Certificates, the obligation of the IssuerOwner Trustee, which which, subject only to Section 2.04, is unconditional and absolute, to pay to the Holder thereof holders of the Series B Certificates the principal thereof thereof, interest thereon and (to all other amounts payable hereunder and under the extent legally enforceable) interest on overdue principal thereon other Operative Agreements in accordance with the terms and the provisions hereof and thereof nor the obligation of the Subordinated Securities Lessee which is unconditional and absolute, to pay Supplemental Rent in accordance with the terms and provisions of such series, or any Coupons appertaining thereto, nor shall each Lease.
(j) Notwithstanding anything that may be to the contrary in this Article Sixteen prevent the Trustee or the Holder of any of the Subordinated Securities Operative Agreements, the holders of such series, or any Coupons appertaining thereto, from exercising the Series B Certificates shall at all remedies otherwise permitted by applicable law or under this Indenture upon default under this Indenture, subject times be entitled to all the rights, if anytitle, under this Article Sixteen benefits and interest of holders of Senior Debt to receive cashthe Guarantee Beneficiary and, property or securities otherwise payable or deliverable in respect thereof, shall not be accountable to the Holders of the Subordinated Securities of such series, Indenture Trustee or any Coupons appertaining thereto. The Issuer agrees, for the benefit of the holders of Senior Debt, that in the event that any of the Subordinated Securities of such series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of a default under this Indenture (a) the Issuer will give prompt notice in writing of such happening to the holders of Senior Debt and (b) all Senior Debt shall forthwith become immediately due and payable upon demand regardless the Series A Certificates for any action taken or not taken or for any sums received in respect of the expressed maturity thereof. No right of Guarantee or any present or future holder of any Senior Debt 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 by any noncompliance by the Issuer with the terms, provisions and covenants of this Article Sixteen, regardless of any knowledge thereof any such holder may have or be charged withCollateral thereunder.
Appears in 1 contract
Sources: Sale and Lease Agreement (American Income Fund I-D)
Terms of Subordination. Anything in this Indenture The Junior Loan Certificate and all other sums payable to the contrary notwithstanding, Junior Loan Participant under the indebtedness evidenced by Subordinated Securities of any series, or any Coupons appertaining thereto, Operative Documents shall be subordinate and junior in right of payment, payment to the Senior Loan Certificates and all other sums payable to the Senior Loan Participants under the Operative Documents to the extent and in the manner hereafter hereinafter set forth, to all Senior Debt :
(a) No payment or distribution shall be made on or in respect of the Issuer, whether outstanding at principal or interest on the date Junior Loan Certificate nor shall any payment or distribution be made on or in respect of this Indenture or incurred after the date of this Indenture but not to any other indebtedness claim (other than an indemnity claim under Section 8 hereof, an "Indemnity Claim") or obligation --------------- owing to the Junior Loan Participant under any Operative Document, in either case, except directly to the Security Agent for application as expressly provided in Section 2.04 of the Issuer other than Senior DebtMortgage.
(1b) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Issuer 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 Issuer, whether or not involving insolvency or bankruptcy, then the holders of Senior Debt shall be entitled to receive payment in full of all principal and interest on all Senior Debt before the holders of the Subordinated Securities of any series, or any Coupons appertaining thereto, are entitled to receive any payment on account of principal or interest thereon, 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 Debt and the holders thereof with respect to the subordinated indebtedness represented by the Subordinated Securities of such series, or any Coupons appertaining thereto, and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Debt shall be entitled to receive for application in payment thereof any Any payment or distribution of any kind or character, whether in cash cash, property, stock or property or securities, obligations which may be payable or deliverable in any such proceedings on or in respect of the Subordinated Securities of such series, Junior Loan Certificate or any Coupons appertaining thereto, except securities which are subordinate and junior in right of payment other sum owing to the Junior Loan Participant under the Operative Documents (other than an Indemnity Claim) shall be paid or delivered directly to the Security Agent for distribution as provided in Section 2.04 of the Mortgage. In the event that, notwithstanding the foregoing, any such payment or distribution shall be received by the Junior Loan Participant (other than from the Security Agent as provided in Section 2.04 of the Mortgage, before the amount of all Senior Debt then outstanding; and
(2) in the event that pursuant to any provision of the Indenture or the Subordinated Securities of any seriesprincipal, or any Coupons appertaining theretoBreak Amount, the Subordinated Securities of such series are declared or otherwise become due and payable before their expressed maturity because of the occurrence of an Event of Default hereunder or otherwise (under circumstances when the provisions of the foregoing clause (1) shall not be applicable)if any, the holders of the Senior Debt outstanding at the time the Subordinated Securities of such series, or any Coupons appertaining thereto, so become due and payable shall be entitled to receive payment in full of all principal of and interest on all Senior Debt before Loan Certificates) and all other sums owing to the holders Senior Loan Participants under the Operative Documents is paid in full, or provision made for such payment, in accordance with its terms, such payment or distribution shall be held in trust for and paid over or delivered to the Security Agent in the form received for distribution as provided in Section 2.04 of the Subordinated Securities Mortgage.
(c) By acceptance of its Junior Loan Certificate, the Junior Loan Participant hereby irrevocably authorizes and empowers the Senior Loan Participants or the Security Agent acting on its behalf, to demand, ▇▇▇ for, collect and receive every payment or distribution made on or in respect of the Junior Loan Certificate or other sum owing to the Junior Loan Participant under the Operative Documents (other than an Indemnity Claim) and to file claims and take such other proceedings, in its own name or in the name of the Junior Loan Participant or otherwise, as the Senior Loan Participants or the Security Agent acting on their behalf may deem necessary or advisable for the enforcement of the provisions hereof. By the acceptance of its Junior Loan Certificate, the Junior Loan Participant agrees duly and promptly to take such action as may be reasonably requested by the Senior Loan Participants or the Security Agent acting on their behalf to collect the indebtedness evidenced by its Junior Loan Certificate or otherwise owing to it under the Operative Documents (other than Indemnity Claims) for the account of the Senior Loan Participants and/or to file appropriate proofs of claim in respect of such seriesindebtedness, and to execute and deliver to the Senior Loan Participants or the Security Agent acting on their behalf on demand such powers of attorney, proofs of claims, assignments of claim or proofs of claim, or other instruments as may be reasonably requested by the Senior Loan Participants or the Security Agent acting on their behalf to enforce any and all claims upon or with respect to its Junior Loan Certificate or otherwise owing to it under the Operative Documents (other than Indemnity Claims).
(d) The Senior Loan Participants or the Security Agent acting on their behalf may, at any time and from time to time, without the consent of or notice to the Junior Loan Participant, without incurring responsibility to such Junior Loan Participant and without impairing or releasing any of the rights of the Senior Loan Participants, or any Coupons appertaining theretoof the obligations of the Junior Loan Participant hereunder:
(i) sell, are entitled exchange, release or otherwise deal with all or any part of any property by whomsoever mortgaged or pledged to receive secure, or howsoever securing, the Senior Loan Certificates;
(ii) except as otherwise expressly provided in this Agreement, exercise or refrain from exercising rights against the Borrower or any payment due solely by reason of such accelerationother Person; and
(3iii) other than Indemnity Claims, apply any sums, by whomsoever paid or however realized, as provided in Section 2.04 of the Mortgage.
(e) By the acceptance of its Junior Loan Certificate, the Junior Loan Participant agrees that in the event that it shall receive any payment on the Junior Loan Certificate or otherwise owing to it under the Operative Documents which it is not entitled to receive under this Section 13 or Section 2.04 of the Mortgage, it will hold any default amount so received in trust for the Senior Loan Participants and will forthwith turn over such payment to the Security Agent on behalf of the Senior Loan Participants in the payment form received to be applied as provided in Section 2.04 of the Mortgage.
(f) By acceptance of its Junior Loan Certificate, the Junior Loan Participant agrees that it may not commence any Senior Debt and during action or proceeding against the continuance of Borrower or any such default, no amount shall be paid, whether in cash, property, securities, or otherwise, other Person obligated in respect of the principal of or interest of the Subordinated Securities of any series, Operative Document to recover all or any Coupons appertaining thereto, if either (a) notice of such default in writing has been given to the Issuer by any holder or holders of any Senior Debt; provided that judicial proceedings shall be commenced with respect to such default within 30 days thereafter, or (b) judicial proceedings shall be pending in respect of such default. No present or future holder of Senior Debt shall be prejudiced in his right to enforce subordination of the Subordinated Securities of any series, or any Coupons appertaining thereto, by any act or failure to act on the part of the Issuer. principal or interest on its Junior Loan Certificate or any other sum owing to it under any Operative Document or join with any creditor, unless the Senior Loan Participants shall also join, in bringing any such action or proceeding.
(g) By acceptance of its Junior Loan Certificate, the Junior Loan Participant hereby irrevocably authorizes and empowers the Security Agent on behalf of the Senior Loan Participants to vote the full amount of the indebtedness evidenced by the Junior Loan Certificate or otherwise owing to it under the Operative Documents.
(h) By acceptance of its Junior Loan Certificate, the Junior Loan Participant agrees that it will not transfer, assign or otherwise dispose of any interest in the Junior Loan Certificate to any entity that is not the Manufacturer or an Affiliate of the Manufacturer without the prior written consent of the Security Agent, such consent not to be unreasonably withheld.
(i) [Intentionally omitted]
(j) The provisions of this Article Sixteen Section 13 and Section 2.04 of the Mortgage are solely for the purpose of defining the relative rights of the holders of Senior Debt Loan Participants on the one hand, and the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto, Junior Loan Participant on the other hand, and nothing herein shall shall, except as otherwise provided herein, impair, as between the Issuer Borrower, and the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining theretoJunior Loan Participant, the obligation of the IssuerBorrower, which is unconditional and absolute, to pay to the Holder thereof Junior Loan Participant the principal thereof amount of the Junior Loan Certificate, interest thereon and (to all other amounts payable hereunder and under the extent legally enforceable) interest on overdue principal thereon other Operative Documents in accordance with the terms of and the Subordinated Securities of such series, or any Coupons appertaining thereto, nor shall anything in this Article Sixteen prevent the Trustee or the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, from exercising all remedies otherwise permitted by applicable law or under this Indenture upon default under this Indenture, subject to the rights, if any, under this Article Sixteen of holders of Senior Debt to receive cash, property or securities otherwise payable or deliverable to the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto. The Issuer agrees, for the benefit of the holders of Senior Debt, that in the event that any of the Subordinated Securities of such series is declared or otherwise becomes due provisions hereof and payable before its expressed maturity because of the occurrence of a default under this Indenture (a) the Issuer will give prompt notice in writing of such happening to the holders of Senior Debt and (b) all Senior Debt shall forthwith become immediately due and payable upon demand regardless of the expressed maturity thereof. No right of any present or future holder of any Senior Debt 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 by any noncompliance by the Issuer with the terms, provisions and covenants of this Article Sixteen, regardless of any knowledge thereof any such holder may have or be charged with.
Appears in 1 contract
Terms of Subordination. Anything in this Indenture to the contrary notwithstanding, the indebtedness evidenced by Subordinated Securities of any series, or any Coupons appertaining thereto, The Junior Lien Obligations shall be subordinate and junior in right of payment, to the extent and in the manner hereafter set forth, to all Senior Debt of the Issuer, whether outstanding at the date of this Indenture or incurred after the date of this Indenture but not to any other indebtedness of the Issuer other than Senior Debt.
(1) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Issuer 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 Issuer, whether or not involving insolvency or bankruptcy, then the holders of Senior Debt shall be entitled to receive payment in full of all principal and interest on all Senior Debt before the holders of the Subordinated Securities of any series, or any Coupons appertaining thereto, are entitled to receive any payment on account of principal or interest thereon, 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 Debt and the holders thereof with respect to the subordinated indebtedness represented by the Subordinated Securities of such series, or any Coupons appertaining thereto, and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Debt shall be entitled to receive for application in payment thereof any 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 the Subordinated Securities of such series, or any Coupons appertaining thereto, except securities which are subordinate and junior in right of payment to the Senior Obligations to the extent and in the manner hereinafter set forth:
(a) Each Junior Secured Party hereby authorizes and empowers the Senior Collateral Agent acting on behalf of the Senior Secured Parties and, subject to the terms and conditions hereof, to demand, ▇▇▇ for, collect and receive every payment or distribution made on or in respect of the Junior Lien Obligations or other sum owing to the holders thereof under the Junior Lien Documents, and to file claims and take such other proceedings, in the name of the holders of the Junior Lien Obligations or otherwise, as the Senior Secured Parties or the Senior Collateral Agent acting on their behalf may deem necessary or advisable for the enforcement of the provisions hereof. Each Junior Secured Party further agrees duly and promptly to take such action as may be requested by the Senior Secured Parties or the Senior Collateral Agent acting on their behalf to collect the indebtedness evidenced by any note issued under the Junior Lien Documents or otherwise owing to it under the Junior Lien Documents and/or to file appropriate proofs of claim in respect to such indebtedness, and to execute and deliver to the Senior Secured Parties or the Senior Collateral Agent acting on their behalf on demand such powers of attorney, proofs of claim, assignments of claim or proofs of claim (but in any such case without any recourse, representation or warranty), or other instruments as may be requested by the Senior Secured Parties or the Senior Collateral Agent acting on their behalf to enforce any and all claims upon or with respect to or otherwise owing to it under the Junior Lien Documents.
(b) In any case, the Senior Debt then outstandingSecured Parties or the Senior Collateral Agent acting on their behalf may, at any time and from time to time, without the consent of or notice to any Junior Secured Parties, without incurring responsibility to such holders and without impairing or releasing any of the rights of the Senior Secured Parties, or any of the obligations of Junior Secured Parties hereunder:
(i) subject to the terms hereof, sell, exchange, release or otherwise deal with all or any part of any property by whomsoever mortgaged or pledged to secure, or howsoever securing, the Senior Obligations for application as provided in Section 2(b) hereof;
(ii) except as otherwise expressly provided in this Agreement, exercise or refrain from exercising any rights against the Company, any other Grantor or any other Person; and
(2iii) apply any sums, by whomsoever paid or however realized, as provided in Section 2(b) hereof.
(c) All payments or distributions upon or with respect to the event Collateral or proceeds of Collateral that pursuant are received by any Junior Secured Party contrary to any provision of the Indenture or the Subordinated Securities of any series, or any Coupons appertaining thereto, the Subordinated Securities of such series are declared or otherwise become due and payable before their expressed maturity because of the occurrence of an Event of Default hereunder or otherwise (under circumstances when the provisions of this Agreement shall be received for the foregoing clause benefit of the Senior Secured Parties, shall be segregated from other funds and property held by the Junior Secured Parties in trust for the Senior Secured Parties and shall be forthwith paid over to the Senior Collateral Agent in the same form as so received (1with any necessary endorsement) to be applied (in the case of cash) to or held as collateral (in the case of non-cash property or securities) for the payment or prepayment of the Secured Obligations owed to the Senior Secured Parties in accordance with the terms hereof.
(d) Each Junior Secured Party agrees that it may not commence any action or proceeding against the Company, any other Grantor or any other Person obligated in respect of any Junior Lien Documents in respect of the Collateral to recover all or any part of any sum owing to it under any Junior Lien Document or join with any creditor, unless the Senior Secured Parties or the Senior Collateral Agent shall not also join in bringing any such action or proceeding or the Senior Secured Parties otherwise consent.
(e) No payment or distribution of assets to which any holder of the Junior Lien Obligations would have been entitled except for the provisions of this Section 5 or Section 2 hereof, as applicable, and which shall have been received by the Senior Secured Parties shall, as between the Company or other obligor thereon, its creditors, and the holder of the Junior Lien Obligations, be applicable)deemed to be a payment by the Company or such other obligor to the holders of the Junior Lien Obligations for or on account of the Junior Lien Obligations, and from and after the payment in full of all Senior Obligations and all other amounts owing to the holders thereof under the Senior Loan Documents, the holders of the Senior Debt outstanding at the time the Subordinated Securities of such series, or any Coupons appertaining thereto, so become due and payable Junior Lien Obligations shall be entitled subrogated to the then or thereafter existing rights of the Senior Secured Parties to receive payment in full payments or distributions of all principal of and interest on all Senior Debt before the holders assets of the Subordinated Securities of Company or such series, other obligor made on or any Coupons appertaining thereto, are entitled to receive any payment due solely by reason of such acceleration; and
(3) in the event of any default in the payment of any Senior Debt and during the continuance of any such default, no amount shall be paid, whether in cash, property, securities, or otherwise, in respect of the Senior Obligations or such other amounts until the principal of or of, and interest of on, the Subordinated Securities of any series, or any Coupons appertaining thereto, if either (a) notice of such default in writing has been given Junior Lien Obligations and all other amounts owing to the Issuer by any holder or holders of any Senior Debt; provided that judicial proceedings thereof under the Junior Lien Documents shall be commenced with respect paid in full in cash. The Junior Secured Parties agree that no payment or distributions to such default within 30 days thereafter, or (b) judicial proceedings the Senior Secured Parties pursuant to the provisions of this Agreement shall be pending entitle any Junior Secured Party to exercise any rights of subrogation in respect of such default. No present or future holder of thereof until no Senior Debt Loans are outstanding and all Senior Secured Obligations owed to the Senior Secured Parties shall be prejudiced have been paid in his right to enforce subordination of the Subordinated Securities of any series, or any Coupons appertaining thereto, by any act or failure to act on the part of the Issuer. full.
(f) The provisions of this Article Sixteen Section 5 and Sections 2 and 4 are solely for the purpose of defining the relative rights of the holders of Senior Debt Secured Parties on the one hand, and the Holders holders of the Subordinated Securities of such series, or any Coupons appertaining thereto, Junior Lien Obligations on the other hand, and nothing herein shall impair, as between the Issuer and the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, impair the obligation of the IssuerCompany, which is unconditional and absolute, to pay to the Holder thereof holders of the principal thereof Junior Lien Obligations all amounts payable hereunder and (to under the extent legally enforceable) interest on overdue principal thereon other Junior Lien Documents in accordance with the terms and the provisions thereof.
(g) The Senior Collateral Agent is hereby authorized to demand specific performance of the Subordinated Securities of such series, or this Agreement at any Coupons appertaining thereto, nor shall anything in this Article Sixteen prevent the Trustee or the Holder of time when any of the Subordinated Securities of such series, or any Coupons appertaining thereto, from exercising all remedies otherwise permitted by applicable law or under this Indenture upon default under this Indenture, subject Junior Secured Parties shall have failed to the rights, if any, under this Article Sixteen of holders of Senior Debt to receive cash, property or securities otherwise payable or deliverable to the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto. The Issuer agrees, for the benefit of the holders of Senior Debt, that in the event that comply with any of the Subordinated Securities provisions of such series is declared or otherwise becomes due and payable before its expressed maturity because of this Agreement applicable to them. The Junior Secured Parties hereby irrevocably waive any defense based on the occurrence adequacy of a default under this Indenture (a) the Issuer will give prompt notice in writing remedy at law that might be asserted as a bar to such remedy of such happening to the holders of Senior Debt and (b) all Senior Debt shall forthwith become immediately due and payable upon demand regardless of the expressed maturity thereof. No right of any present or future holder of any Senior Debt 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 by any noncompliance by the Issuer with the terms, provisions and covenants of this Article Sixteen, regardless of any knowledge thereof any such holder may have or be charged withspecific performance.
Appears in 1 contract
Sources: Term Loan Credit Agreement (International Lease Finance Corp)
Terms of Subordination. Anything in this Indenture Notwithstanding anything to the contrary notwithstandingcontrary, the indebtedness evidenced by Subordinated Securities of any series, or any Coupons appertaining thereto, shall be subordinate and junior in right of payment, to the extent and in the manner hereafter set forth, to all Senior Debt obligations of the Issuer, whether outstanding at the date of this Indenture or incurred after the date of this Indenture but not to any other indebtedness of the Issuer other than Senior Debt.
(1) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Issuer 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 Issuer, whether or not involving insolvency or bankruptcy, then the holders of Senior Debt shall be entitled to receive payment in full of all principal and interest on all Senior Debt before the holders of the Subordinated Securities of any series, or any Coupons appertaining thereto, are entitled to receive any payment on account of principal or interest thereon, 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 Debt and the holders thereof with respect to the subordinated indebtedness represented by the Subordinated Securities of such series, or any Coupons appertaining thereto, and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Debt shall be entitled to receive for application in payment thereof any 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 Company in respect of the Subordinated Securities of such series, or any Coupons appertaining thereto, except securities which are this Note will be subordinate and junior in right of payment to the payment in full in cash of any and all existing and future Senior Debt then outstanding; and
Indebtedness (2as defined below) on the terms set forth in the event that pursuant this Section 4.1. Upon any distribution to any provision creditors of the Indenture Company in a liquidation or dissolution of the Subordinated Securities of any seriesCompany, in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, or in an assignment for the benefit of creditors or in any Coupons appertaining thereto, the Subordinated Securities of such series are declared or otherwise become due and payable before their expressed maturity because marshaling of the occurrence of an Event of Default hereunder or otherwise Company’s assets and liabilities: (under circumstances when the provisions of the foregoing clause (1a) shall not be applicable), the holders of the Senior Debt outstanding at the time the Subordinated Securities of such series, or any Coupons appertaining thereto, so become due and payable shall Indebtedness will be entitled to receive payment in full of all principal obligations due in respect of and such Senior Indebtedness (including interest on all after the commencement of any bankruptcy proceeding at the rate specified in the applicable Senior Debt Indebtedness) before the holders Holder of the Subordinated Securities of such series, or any Coupons appertaining thereto, are this Note will be entitled to receive any payment due solely by reason of such accelerationor distribution with respect to this Note; and
and (3b) until all obligations with respect to Senior Indebtedness (as provided in the event of any default in the payment of any Senior Debt and during the continuance of any such default, no amount shall be paid, whether in cash, property, securities, or otherwise, in respect of the principal of or interest of the Subordinated Securities of any series, or any Coupons appertaining thereto, if either clause (a) notice above) are paid in full, any distribution to which the Holder would be entitled but for this Article 4 will be made to holders of such default Senior Indebtedness, except that the Holder may receive common stock, par value $0.01 per share, of the Company (“Common Stock”) in writing has been given exchange for all or a portion of this Note (to the Issuer by extent provided in Section 5.2 below). In the event any holder or such distribution is paid to the holders of any Senior Debt; provided that judicial proceedings Indebtedness instead of to the Holder of this Note, then upon payment in full in cash of all Senior Indebtedness, the Holder of this Note shall be commenced with respect subrogated to such default within 30 days thereafter, or (b) judicial proceedings shall be pending in respect of such default. No present or future holder of Senior Debt shall be prejudiced in his right to enforce subordination of the Subordinated Securities of any series, or any Coupons appertaining thereto, by any act or failure to act on the part of the Issuer. The provisions of this Article Sixteen are solely for the purpose of defining the relative rights claims of the holders of Senior Debt on the one hand, and the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto, on the other hand, and nothing herein shall impair, as between the Issuer and the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, the obligation of the Issuer, which is unconditional and absolute, to pay to the Holder thereof the principal thereof and (Indebtedness to the extent legally enforceableof such distribution. Payments may not be made hereunder, and no rights or remedies may be exercised by the Holder in respect of this Note, to the extent, but only to the extent, (i) interest any such payment or the exercise of such rights or remedies by the Holder would result in a default or acceleration under any material agreement or instrument with a third party unaffiliated with the Company with respect to Senior Indebtedness, or (ii) any default exists under any material agreement or instrument with a third party unaffiliated with the Company with respect to Senior Indebtedness. The restrictions on overdue principal thereon payment and the exercise of rights and remedies in accordance the preceding sentence shall not be applicable (i) to the Company’s obligation to make cash payments to the holder of the Note in connection with a Change of Control; and (ii) to the Company’s obligation to issue Common Stock as payment for the Note at any time when the Company may pay the Note by exchange of Common Stock as provided herein. Accordingly, any delay in any cash payment under this Note (other than in connection with a Change of Control) resulting from the restrictions contained in this Article 4 shall not result in any breach or default under this Note so long as the Company provides in lieu of cash payment, payment of the Note by exchange of its Common Stock if and to the extent that payment in Common Stock is available under the terms of the Subordinated Securities of this Note at such seriestime. The Holder, whether upon original issue or any Coupons appertaining theretoupon transfer or assignment hereof, nor by its acceptance hereof agrees that this Note shall anything in this Article Sixteen prevent the Trustee or the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, from exercising all remedies otherwise permitted by applicable law or under this Indenture upon default under this Indenture, be subject to the rights, if any, under this Article Sixteen of holders of Senior Debt to receive cash, property or securities otherwise payable or deliverable to the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto. The Issuer agrees, for the benefit of the holders of Senior Debt, that in the event that any of the Subordinated Securities of such series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of a default under this Indenture (a) the Issuer will give prompt notice in writing of such happening to the holders of Senior Debt and (b) all Senior Debt shall forthwith become immediately due and payable upon demand regardless of the expressed maturity thereof. No right of any present or future holder of any Senior Debt 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 by any noncompliance by the Issuer with the terms, provisions and covenants of this Article Sixteen4. If the Company shall determine to create senior debt securities, regardless senior credit facilities or other senior financing arrangements (including without limitation senior equipment financing) and, in order to consummate such transactions, the creditor(s) thereto request that the Holder execute and deliver to such creditor(s) other instruments, documents or agreements evidencing the subordination of any knowledge thereof any this Note to such holder may have securities, facilities or arrangements, the Holder agrees to cooperate with the Company and to take, or cause to be charged withtaken, all action, and do, or cause to be done, all things, reasonably necessary, or reasonably requested by the applicable senior creditor(s) for such securities, facilities or arrangements, to carry out and effectuate the intent of the subordination terms of this Article 4; provided such undertakings are not otherwise inconsistent with the intent of the parties in this Note.
Appears in 1 contract
Terms of Subordination. Anything (a) The Project Company shall not create or permit to subsist, and the Sponsor shall not receive or permit to subsist, any security interest over any of the Project Company's assets in this Indenture to the contrary notwithstanding, the indebtedness evidenced by Subordinated Securities respect of any series, all or any Coupons appertaining thereto, shall be subordinate and junior in right of payment, to the extent and in the manner hereafter set forth, to all Senior Debt part of the Issuer, whether outstanding at the date of this Indenture or incurred after the date of this Indenture but not to any other indebtedness of the Issuer other than Senior DebtSubordinated Fees.
(1b) In Upon any distribution of assets in connection with any dissolution, winding up, liquidation or reorganisation of the event of any Project Company (whether in bankruptcy, insolvency or bankruptcy receivership proceedings, and any receivership, liquidation, reorganization ) or other similar proceedings in connection therewith, relative to upon an assignment for the Issuer or to its creditors, as such, or to its property, and in the event benefit of any proceedings for voluntary liquidation, dissolution or other winding up creditors of the Issuer, whether or not involving insolvency or bankruptcy, then Project Company:
(i) the holders of Senior Debt Loans shall first be entitled to receive payment paid in full of all principal and interest on all Senior Debt before the holders any payments are made in respect of the Subordinated Securities of any series, or any Coupons appertaining thereto, are entitled to receive any payment on account of principal or interest thereon, and to that end Fees; and
(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 Debt and the holders thereof with respect to the subordinated indebtedness represented by the Subordinated Securities of such series, or any Coupons appertaining thereto, and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy lawii) the holders of Senior Debt Sponsor shall be entitled use its best efforts to receive for application in payment thereof ensure that any payment or distribution of assets of the Project Company of any kind or character, whether in cash or cash, property or securities, to which may the Sponsor would be payable or deliverable in any such proceedings entitled in respect of any Subordinated Fees except for these provisions, shall instead be paid by the Subordinated Securities of person making such seriespayment or distribution, whether a court or any Coupons appertaining theretotrustee in bankruptcy, except securities which are subordinate and junior in right of payment a receiver or liquidating trustee or other court, trustee or agent, directly to the payment of all Senior Debt then outstanding; andLenders until the Loans have been paid in full.
(2c) If for any reason whatsoever the Sponsor receives:
(i) any payment or distribution in respect of any Subordinated Fees contrary to the event that pursuant to provisions set out above; or Amended and Restated Financial Support Agreement
(ii) any provision benefit by way of the Indenture or the Subordinated Securities operation of any seriesmandatory set-off required under any applicable law, then the Sponsor shall hold such payment or any Coupons appertaining thereto, the Subordinated Securities of such series are declared distribution or otherwise become due benefit in trust for and payable before their expressed maturity because of the occurrence of an Event of Default hereunder or otherwise (under circumstances when the provisions of the foregoing clause (1) shall not be applicable), the holders on behalf of the Senior Debt outstanding at Lenders, promptly notify the time Senior Lenders of the Subordinated Securities receipt of such seriespayment or distribution or benefit and promptly (in the case of a payment or distribution received) pay the amount of such payment or distribution or (in the case of a benefit received) pay an amount in Dollars equal to the value of such benefit, or to the Senior Lenders or, if the Senior Lenders so elect, to any Coupons appertaining theretoperson nominated by the Senior Lenders, so become due and payable shall be entitled to receive payment in full of all principal of and interest on all Senior Debt before hold for the holders account of the Subordinated Securities of such series, or any Coupons appertaining thereto, are entitled to receive any payment due solely by reason of such acceleration; andSenior Lenders.
(3d) Until the Loans have been irrevocably paid in full, the event Sponsor shall not, except with the prior written consent of any default in the Senior Lenders:
(i) except as payment thereof is otherwise permitted hereunder, seek to enforce payment of any Senior Debt and during Subordinated Fees by execution or otherwise, or obtain the continuance benefit of any such default, no amount shall be paidsecurity or exercise any other rights or legal remedies of any kind which may accrue to the Sponsor against the Project Company, whether in cashby way of subrogation, propertyoffset, securities, counterclaim or otherwise, in respect of the principal of amount so payable or interest of the Subordinated Securities of any series, so paid (or any Coupons appertaining thereto, if either (a) notice of such default in writing has been given to the Issuer by any holder or holders of any Senior Debt; provided that judicial proceedings shall be commenced with respect to such default within 30 days thereafter, or (b) judicial proceedings shall be pending in respect of such default. No present any other moneys for the time being due to the Sponsor from the Project Company); or
(ii) initiate or future holder of Senior Debt shall be prejudiced support or take any steps with a view to any bankruptcy, insolvency, reorganization or dissolution proceedings in his right to enforce subordination respect of the Subordinated Securities of Project Company.
(e) Except as payment thereof is otherwise permitted hereunder, the Sponsor shall not set-off, assert any seriescounter claim in respect of, or otherwise reduce any Coupons appertaining thereto, by any act or failure amounts the payment of which is required to act on be deferred under the part of the Issuer. The provisions of this Article Sixteen are solely for Agreement.
(f) No Subordinated Fees or right, title or interest therein shall be assigned or transferred, in whole or in part, by the purpose of defining Sponsor (and the relative rights Project Company shall not register, recognize or otherwise acknowledge such assignment or transfer) without the prior written consent of the holders of Senior Debt on Lenders (such consent not to be unreasonably withheld), it being understood that it shall be a precondition to any such consent that the one hand, and the Holders of the Subordinated Securities proposed assignee or transferee of such seriesSubordinated Fees or right, title or any Coupons appertaining thereto, on the other hand, interest therein agrees in an instrument in form and nothing herein shall impair, as between the Issuer and the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, the obligation of the Issuer, which is unconditional and absolute, to pay substance acceptable to the Holder thereof the principal thereof and (Senior Lenders to the extent legally enforceable) interest on overdue principal thereon in accordance with be fully bound by the terms of the Subordinated Securities of such series, or any Coupons appertaining thereto, nor shall anything in this Article Sixteen prevent the Trustee or the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, from exercising all remedies otherwise permitted by applicable law or under this Indenture upon default under this Indenture, subject to the rights, if any, under this Article Sixteen of holders of Senior Debt to receive cash, property or securities otherwise payable or deliverable to the Holders of the Subordinated Securities of such series, or any Coupons appertaining theretoIV. The Issuer agrees, for the benefit of the holders of Senior Debt, that in the event that any of the Subordinated Securities of such series is declared or otherwise becomes due Amended and payable before its expressed maturity because of the occurrence of a default under this Indenture (a) the Issuer will give prompt notice in writing of such happening to the holders of Senior Debt and (b) all Senior Debt shall forthwith become immediately due and payable upon demand regardless of the expressed maturity thereof. No right of any present or future holder of any Senior Debt 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 by any noncompliance by the Issuer with the terms, provisions and covenants of this Article Sixteen, regardless of any knowledge thereof any such holder may have or be charged with.Restated Financial Support Agreement
Appears in 1 contract
Sources: Financial Support Agreement (Genesee & Wyoming Inc)
Terms of Subordination. Anything in this Indenture No payment of the principal of, premium, if any, or interest on the Debenture shall be made by the Company or received by the Holder, and no prepayment, retirement, purchase or other acquisition of the Debenture shall be made by the Company, if at the time thereof or immediately thereafter giving effect thereto, there exists (and has not been waived) any default with respect to the contrary notwithstanding, the indebtedness evidenced by Subordinated Securities any provision of any series, Senior Indebtedness then outstanding or under any Coupons appertaining thereto, shall be subordinate and junior in right of payment, to the extent and in the manner hereafter set forth, to all agreement under which such Senior Debt Indebtedness was issued. Upon any distribution of the Issuer, whether outstanding at the date of this Indenture or incurred after the date of this Indenture but not to any other indebtedness assets of the Issuer other than Senior Debt.
(1) In the event of Company upon any insolvency or bankruptcy proceedingsdissolution, and any receivershipwinding up, liquidation, reorganization or recapitalization or readjustment of the Company (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or any other similar proceedings in connection therewith, relative to arrangement or marshalling of the Issuer or to its creditors, as suchassets and liabilities of the Company, or otherwise); provided that the consolidation of the Company with or the merger of the Company into another company or the sale of its property as an entirety, or substantially as an entirety, to its property, and in the event of any proceedings for voluntary liquidation, dissolution or other another company shall not be deemed a winding up for purposes hereof if such company as a part of such consolidation, merger or sale, assume the Issuerobligation to pay the indebtedness evidenced by the Debenture:
(i) Except as hereinafter provided, whether the holder or not involving insolvency or bankruptcy, then the holders of Senior Debt Indebtedness shall first be entitled to receive payment in full full, or have provisions satisfactory to such holders made for payment in full, of all the principal thereof, premium, if any, and interest on all Senior Debt thereon, before the holders of the Subordinated Securities of any series, or any Coupons appertaining thereto, are Holder is entitled to receive any payment on account of the principal of, premium, if any, or interest thereonon the Debenture; and
(ii) Except as hereinafter provided, 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 Debt and the holders thereof with respect to the subordinated indebtedness represented by the Subordinated Securities of such series, or any Coupons appertaining thereto, and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Debt shall be entitled to receive for application in payment thereof any payment or distribution of assets of the Company of any kind or character, whether in cash or cash, property or securitiessecurities to which the Holder would be entitled except for the provisions hereof shall be paid by the liquidating trustee or agent, which may be payable whether a trustee in a receiver or deliverable in any such proceedings in respect liquidating trustee or other trustee or agent, directly to the holder or holders of the Subordinated Securities Senior Indebtedness of the Company or their representative or representatives, ratably according to the aggregate amounts remaining unpaid on account of the principal of, premium, if any, and interest 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 concurrent payment or distribution, or provision therefor, to the holder of such seriesSenior Indebtedness; provided that no such delivery shall be made to the holders of Senior Indebtedness of stock or obligations which are issued pursuant to reorganization or readjustment proceedings or dissolution or liquidation proceedings, or upon any Coupons appertaining theretomerger, except securities which consolidation, sale, lease, transfer or other disposal of property or assets not prohibited by the provisions of the Debenture, by the Company, as reorganized, or by the company succeeding to the Company or acquiring its property and assets, if such stock or obligations are subordinate and junior at least to the extent provided in right of payment (and governed by terms substantially identical to the provisions of) this Section 4(b) to the payment of all Senior Debt Indebtedness then outstanding; and
(2) in the event that pursuant outstanding and to any provision of the Indenture or the Subordinated Securities of any series, or any Coupons appertaining thereto, the Subordinated Securities of such series are declared or otherwise become due and payable before their expressed maturity because of the occurrence of an Event of Default hereunder or otherwise (under circumstances when the provisions of the foregoing clause (1) shall not be applicable), the holders of the Senior Debt outstanding at the time the Subordinated Securities of such series, or any Coupons appertaining thereto, so become due and payable shall be entitled to receive payment in full of all principal of and interest on all Senior Debt before the holders of the Subordinated Securities of such series, or any Coupons appertaining thereto, are entitled to receive any payment due solely by reason of such acceleration; and
(3) in the event of any default in the payment of any stock or obligations which are issued in exchange or substitution for any Senior Debt and during Indebtedness then outstanding. In the continuance event that any payment or distribution of assets of the Company of any such default, no amount shall be paidkind or character, whether in cash, property, property or securities, shall be received by the Holder which such Holder is not entitled to receive under this Section 4(b), such payment or otherwisedistribution shall be held in trust by such Holder for, in respect of and immediately paid over to, the principal of or interest of the Subordinated Securities of any series, or any Coupons appertaining thereto, if either (a) notice of such default in writing has been given to the Issuer by any holder or holders of any Senior Debt; provided that judicial proceedings shall be commenced with respect Indebtedness remaining unpaid or unprovided for or their representative or representatives, ratably according to such default within 30 days thereafter, or (b) judicial proceedings shall be pending in respect of such default. No present or future holder of Senior Debt shall be prejudiced in his right to enforce subordination the aggregate amounts remaining unpaid on account of the Subordinated Securities of any seriesprincipal of, or any Coupons appertaining thereto, by any act or failure to act on the part of the Issuer. The provisions of this Article Sixteen are solely for the purpose of defining the relative rights of the holders of Senior Debt on the one hand, and the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto, on the other hand, and nothing herein shall impair, as between the Issuer and the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, the obligation of the Issuer, which is unconditional and absolute, to pay to the Holder thereof the principal thereof and (to the extent legally enforceable) interest on overdue principal thereon in accordance with the terms of the Subordinated Securities of such series, or any Coupons appertaining thereto, nor shall anything in this Article Sixteen prevent the Trustee or the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, from exercising all remedies otherwise permitted by applicable law or under this Indenture upon default under this Indenture, subject to the rightspremium, if any, under this Article Sixteen of holders of and interest on such Senior Debt Indebtedness, until all such Senior Indebtedness shall have been paid in full, after giving effect to receive cash, property any concurrent payment or securities otherwise payable or deliverable to the Holders of the Subordinated Securities of such seriesdistribution, or any Coupons appertaining thereto. The Issuer agreesprovision therefor, for the benefit of the holders of Senior Debt, that in the event that any of the Subordinated Securities of such series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of a default under this Indenture (a) the Issuer will give prompt notice in writing of such happening to the holders of such Senior Debt and (b) all Senior Debt shall forthwith become immediately due and payable upon demand regardless of the expressed maturity thereof. No right of any present or future holder of any Senior Debt 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 by any noncompliance by the Issuer with the terms, provisions and covenants of this Article Sixteen, regardless of any knowledge thereof any such holder may have or be charged withIndebtedness.
Appears in 1 contract
Sources: Convertible Debenture (Tesoro Petroleum Corp /New/)
Terms of Subordination. Anything [The following provisions are to be included in this Indenture each instrument or document evidencing loans from the Parent to the contrary notwithstandingBorrower pursuant to Section 4 of the Support Agreement]
1. Reference is made to the Third Amended and Restated Credit Agreement, dated as of November 20, 1996 (such agreement, as it may hereafter be amended, modified or supplemented from time to time, being the "Credit Agreement"; the terms defined therein and not otherwise defined herein being used herein as therein defined), among IES Diversified Inc., the indebtedness evidenced by Lenders named therein and Citibank, N.A., as Agent for the Lenders. The Parent hereby agrees for the benefit of the Agent and the Lenders that all obligations of the Borrower to the Parent hereunder (the "Subordinated Securities of any series, or any Coupons appertaining thereto, Debt") are and shall be subordinate and junior in right of paymentsubordinate, to the extent and in the manner hereafter set forthforth hereinafter, to all Senior Debt in right of the Issuer, whether outstanding at the date of this Indenture or incurred after the date of this Indenture but not to any other indebtedness of the Issuer other than Senior Debt.
(1) In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative payment to the Issuer 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 Issuer, whether or not involving insolvency or bankruptcy, then the holders of Senior Debt shall be entitled to receive prior payment in full of all principal obligations of the Borrower under the Credit Agreement and the other Loan Documents, whether for principal, interest on (including interest, as provided in the Loan Documents, after the filing of a petition initiating any proceeding referred to in paragraph 3, below), fees, expenses or otherwise (all such obligations being the "Senior Debt before Debt").
2. Upon the holders occurrence and during the continuance of an Event of Default or an Unmatured Default, the Parent shall not ask, demand, sue for, take or receive from the Borrower, directl▇ ▇r indirectly, in cash or other property or by set-off or in any other manner (including, without limitation, from or by way of collateral), payment of all or any of the Subordinated Securities Debt.
3. Upon any distribution of any series, all or any Coupons appertaining thereto, are entitled of the assets of the Borrower to receive any payment on account creditors of principal or interest thereon, 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 Borrower upon the Senior Debt and dissolution, winding up, liquidation, arrangement, reorganization or composition of the holders thereof with respect to Borrower, whether in any bankruptcy, insolvency, arrangement, reorganization, receivership or similar proceedings or upon an assignment for the subordinated indebtedness represented by the Subordinated Securities benefit of such series, creditors or any Coupons appertaining theretoother marshaling of the assets and liabilities of the Borrower or otherwise, and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Debt shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, (whether in cash or cash, property or securities, ) which may otherwise would be payable or deliverable upon or with respect to the Subordinated Debt shall be paid or delivered directly to the Agent for the benefit of the Agent and the Lenders for application (in the case of cash) to or as collateral (in the case of non-cash property or securities) for the payment or prepayment of the Senior Debt until the Senior Debt shall have been paid in full. For the purposes of these provisions, the Senior Debt shall not be deemed to have been paid in full until the Agent and the Lenders shall have indefeasibly received payment in full of the Senior Debt in cash.
4. Until such time as the Senior Debt shall have been paid in full, if any proceeding referred to in paragraph 3, above, is commenced by or against the Borrower, the Agent is hereby irrevocably authorized and empowered (in its own name, on behalf of the Lenders, in the name of the Parent, or otherwise), but shall have no obligation, to demand, sue for, collect and receive every payment or distrib▇▇▇on referred to in paragraph 3, above, and give acquittance therefor and to file claims and proofs of claim and take such other action (including, without limitation, voting the Subordinated Debt or enforcing any Lien securing payment of the Subordinated Debt) as it may deem necessary or advisable for the exercise or enforcement of any of the rights or interests of the Lenders hereunder.
5. All payments or distributions upon or with respect to the Subordinated Debt which are received by the Parent contrary to the provisions hereof shall be received in trust for the benefit of the Agent and the Lenders, shall be segregated from other funds and property held by the Parent and shall be forthwith paid over to the Agent for the benefit of the Agent and the Lenders in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to or held as collateral (in the case of non-cash property or securities) for the payment or prepayment of the Senior Debt in accordance with the terms of the Loan Documents.
6. The Agent is hereby authorized to demand specific performance of these terms of subordination, whether or not the Borrower shall have complied with any of the provisions hereof applicable to it, at any time when the Parent shall have failed to comply with any of such provisions applicable to it. The Parent 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.
7. So long as any of the Senior Debt shall remain unpaid, the Parent shall not (i) commence, or join with any creditor other than the Agent and the Lenders in commencing, any involuntary proceeding referred to in paragraph 3, above, or (ii) declare any default in payment due hereunder or sue for breach of the terms hereof, if and so long ▇▇ payment hereunder would not be permissible pursuant to paragraph 2 above.
8. No payment or distribution to the Agent and the Lenders pursuant to the above provisions shall entitle the Parent to exercise any rights of subrogation in respect thereof until the Senior Debt shall have been paid in full.
9. The holders of the Senior Debt may, at any time and from time to time, without any consent of or notice to the Parent or any other holder of the Subordinated Debt and without impairing or releasing the obligations of the Parent under these terms of subordination: (i) change the manner, place or terms of payment or change or extend the time of payment of, or renew or alter, the Senior Debt (including any change in the interest rate under which any of the Senior Debt is outstanding); (ii) sell, exchange, release, not perfect and otherwise deal with any property at any time pledged, assigned or mortgaged to secure the Senior Debt; (iii) release anyone liable in any such proceedings manner under or in respect of the Subordinated Securities of such series, Senior Debt; (iv) exercise or refrain from exercising any Coupons appertaining thereto, except securities which are subordinate rights against the Borrower and junior in right of payment others; and (v) apply any sums from time to time received to the payment Senior Debt.
10. The foregoing provisions regarding subordination are for the benefit of all Senior Debt then outstanding; and
(2) in the event that pursuant to any provision of the Indenture or the Subordinated Securities of any series, or any Coupons appertaining thereto, the Subordinated Securities of such series are declared or otherwise become due and payable before their expressed maturity because of the occurrence of an Event of Default hereunder or otherwise (under circumstances when the provisions of the foregoing clause (1) shall not be applicable), the holders of the Senior Debt outstanding at the time the Subordinated Securities of such series, or any Coupons appertaining thereto, so become due and payable shall be entitled to receive payment in full of all principal of and interest on all Senior Debt before enforceable by them directly against the holders of the any Subordinated Securities of such seriesDebt, or any Coupons appertaining thereto, are entitled to receive any payment due solely by reason of such acceleration; and
(3) in the event of any default in the payment of any Senior Debt and during the continuance of any such default, no amount shall be paid, whether in cash, property, securities, or otherwise, in respect holder of the principal of or interest of the Subordinated Securities of any series, or any Coupons appertaining thereto, if either (a) notice of such default in writing has been given to the Issuer by any holder or holders of any Senior Debt; provided that judicial proceedings shall be commenced with respect to such default within 30 days thereafter, or (b) judicial proceedings shall be pending in respect of such default. No present or future holder of Senior Debt shall be prejudiced in his its right to enforce subordination of any of the Subordinated Securities of any series, or any Coupons appertaining thereto, Debt by any act or failure to act on by the part Borrower or anyone in custody of its assets or property. No such provisions may be amended or modified without the prior written consent of the IssuerAgent. The provisions Principal Borrower Amount Lender Type
1. Iowa Northern Railway Co. 220,649.00 Iowa Railway IES Guarantee of this Article Sixteen are solely for the purpose of defining the relative rights of the holders of Senior Debt on the one hand, and the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto, on the other hand, and nothing herein shall impair, as between the Issuer and the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, the obligation of the Issuer, which is unconditional and absolute, Financing unsecured loan Authority to pay to the Holder thereof the principal thereof and (to the extent legally enforceable) interest on overdue principal thereon in accordance with the terms of the Subordinated Securities of such series, or any Coupons appertaining thereto, nor shall anything in this Article Sixteen prevent the Trustee or the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, from exercising all remedies otherwise permitted by applicable law or under this Indenture upon default under this Indenture, subject to the rights, if any, under this Article Sixteen of holders of Senior Debt to receive cash, property or securities otherwise payable or deliverable to the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto. The Issuer agrees, for the benefit of the holders of Senior Debt, that in the event that any of the Subordinated Securities of such series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of a default under this Indenture Iowa Northern Railway
(a) FORM OF NOTICE OF A BORROWING Citibank, N.A., as Agent for the Issuer will give prompt notice in writing of such happening Lenders parties to the holders Credit Agreement referred to below Attention: __________ [Date] Gentlemen: The undersigned, IES Diversified Inc., refers to the Third Amended and Restated Credit Agreement, dated as of Senior Debt November 20, 1996 (as amended, modified or supplemented from time to time, the "Credit Agreement", the terms defined therein being used herein as therein defined), among the undersigned, the Lenders named therein and (b) all Senior Debt shall forthwith become immediately due the Agent, and payable upon demand regardless hereby gives you notice, irrevocably, pursuant to Section 2.02 of the expressed maturity thereof. No right Credit Agreement that the undersigned hereby requests an A Borrowing under the Credit Agreement, and in that connection sets forth below the information relating to such A Borrowing (the "Proposed A Borrowing") as required by Section 2.02(a) of any present or future holder of any Senior Debt 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 by any noncompliance by the Issuer with the terms, provisions and covenants of this Article Sixteen, regardless of any knowledge thereof any such holder may have or be charged with.Credit Agreement:
Appears in 1 contract
Sources: Credit Agreement (Ies Utilities Inc)
Terms of Subordination. Anything in this Indenture to the contrary notwithstanding, the indebtedness evidenced by Subordinated Securities of any series, or any Coupons appertaining thereto, shall be subordinate and junior in right of payment, to the extent and in the manner hereafter set forth, to all Senior Debt of the Issuer, whether outstanding at the date of this Indenture or incurred after the date of this Indenture but not to any other indebtedness of the Issuer other than Senior Debt.
(1a) In the event of (x) any insolvency or bankruptcy proceedingsinsolvency, and any bankruptcy, receivership, liquidation, reorganization reorganization, readjustment, composition or other similar proceedings in connection therewith, proceeding relative to the Issuer Company or to its creditors, as such, creditors or to its property, and in the event of (y) any proceedings proceeding for voluntary liquidation, dissolution or other winding up of the Issuer, Company whether or not involving insolvency or bankruptcybankruptcy proceedings, or (z) any assignment for the benefit of creditors generally or any marshaling of the assets of the Company, then and in any such event:
(i) all Senior Indebtedness (including, without limitation, interest accruing on such Senior Indebtedness after the holders date of Senior Debt filing a petition or other action commencing any such proceeding) shall first be entitled to receive paid in full, or have provision made for payment in full to the satisfaction of all principal and interest on all the holder of any Senior Debt Indebtedness, in its sole discretion, before the holders Holders of the Subordinated Securities of any series, or any Coupons appertaining thereto, are entitled to receive any payment on account of the principal of or premium, if any, or interest thereonon the Securities, and to that end and
(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 Debt and the holders thereof with respect to the subordinated indebtedness represented by the Subordinated Securities of such series, or any Coupons appertaining thereto, and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy lawii) the holders of Senior Debt shall be entitled to receive for application in payment thereof any payment or distribution of assets of the Company of any kind or character, whether in cash or cash, property or securities, which may be payable or deliverable in any such proceedings in respect securities (other than securities of the Subordinated Securities of such series, Company or any Coupons appertaining theretoother corporation provided for by a plan of reorganization or readjustment, except securities provided the rights of the holders of Senior Indebtedness are not altered by such reorganization or readjustment, the payment of which are subordinate and junior is subordinate, at least to the extent provided in right of payment this Article XIII with respect to the Securities, to the payment of all Senior Debt then Indebtedness at the time outstanding and to the payment of all securities issued in exchange therefor to the holders of Senior Indebtedness at the time outstanding; and
(2) in ), to which the event that pursuant to any provision Holders of the Indenture Securities or the Subordinated Securities of any series, or any Coupons appertaining thereto, the Subordinated Securities of such series are declared or otherwise become due and payable before their expressed maturity because of the occurrence of an Event of Default hereunder or otherwise (under circumstances when Trustee would be entitled except for the provisions of this Article XIII, shall be paid by the foregoing clause (1) shall not be applicable)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 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, ratably according to the aggregate amounts remaining unpaid on account of the principal of and premium, if any, and interest on, the Senior Debt outstanding at Indebtedness held or represented by each, to the time the Subordinated Securities of such series, or any Coupons appertaining thereto, so become due and payable shall be entitled extent necessary to receive make payment in full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution, or provision therefor, to the holders of such Senior Indebtedness.
(b) No payments on account of principal of or premium, if any, or interest on the Securities shall be made unless full payment of amounts then due for principal of (including, without limitation, any sinking fund payment), premium, if any, and interest on all Senior Debt before Indebtedness has been made or otherwise duly provided for to the holders satisfaction of the Subordinated Securities each holder of such seriesany Senior Indebtedness, or any Coupons appertaining thereto, are entitled to receive any payment due solely by reason of such acceleration; andin its sole discretion.
(3c) in In the event and during the continuation of any default or event of default in the payment respect of any Senior Debt Indebtedness or under any agreement under which any Senior Indebtedness was issued continuing beyond the period of grace, if any, specified in such agreement, then, unless and during until such default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the continuance Company and no application of funds shall be made with respect to the principal of or premium, if any, or interest on the Securities.
(d) In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any such default, no amount shall be paidkind or character, whether in cash, property, securities, property or otherwise, in respect securities (other than securities of the principal of or interest of the Subordinated Securities of any series, Company or any Coupons appertaining theretoother corporation provided for by a plan of reorganization or readjustment, if either (a) notice of such default in writing has been given to the Issuer by any holder or holders of any Senior Debt; provided that judicial proceedings shall be commenced with respect to such default within 30 days thereafter, or (b) judicial proceedings shall be pending in respect of such default. No present or future holder of Senior Debt shall be prejudiced in his right to enforce subordination of the Subordinated Securities of any series, or any Coupons appertaining thereto, by any act or failure to act on the part of the Issuer. The provisions of this Article Sixteen are solely for the purpose of defining the relative rights of the holders of Senior Debt on the one hand, and the Holders of the Subordinated Securities of Indebtedness are not altered by such series, reorganization or any Coupons appertaining thereto, on the other hand, and nothing herein shall impair, as between the Issuer and the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining theretoreadjustment, the obligation payment of the Issuer, which is unconditional and absolutesubordinate, to pay to the Holder thereof the principal thereof and (at least to the extent legally enforceable) interest on overdue principal thereon in accordance with the terms of the Subordinated Securities of such series, or any Coupons appertaining thereto, nor shall anything provided in this Article Sixteen prevent XIII with respect to the Securities, to the payment of all Senior Indebtedness at the time outstanding and to the payment of all securities issued in exchange therefor to the holders of Senior Indebtedness at the time outstanding) shall be received by the Trustee or the Holder of any of Security during the Subordinated Securities of such series, or any Coupons appertaining thereto, from exercising all remedies otherwise permitted by applicable law or under this Indenture upon default under this Indenture, subject to the rights, if any, under this Article Sixteen of holders of Senior Debt to receive cash, property or securities otherwise payable or deliverable to the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto. The Issuer agrees, for the benefit of the holders of Senior Debt, that in the event that any of the Subordinated Securities of such series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of a default under this Indenture (a) the Issuer will give prompt notice in writing of such happening to the holders of Senior Debt and (b) all Senior Debt shall forthwith become immediately due and payable upon demand regardless of the expressed maturity thereof. No right continuance of any present event specified in Section 13.02(a), 13.02(b) or future holder of any Senior Debt 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 by any noncompliance by the Issuer with the terms, provisions and covenants of this Article Sixteen, regardless of any knowledge thereof any such holder may have or be charged with.13.02
Appears in 1 contract
Terms of Subordination. Anything in this Indenture Subject to Section 3.04(c), ---------------------- the Series B Certificates and all other sums payable to the contrary notwithstanding, holders thereof under the indebtedness evidenced by Subordinated Securities of any series, or any Coupons appertaining thereto, Operative Agreements shall be subordinate and junior in right of payment, payment to the Series A Certificates and all other sums payable to the holders thereof under the Operative Agreements to the extent and in the manner hereafter hereinafter set forth, to all Senior Debt :
(a) No payment or distribution shall be made on or in respect of the Issuerprincipal of, whether outstanding at interest (including, without limitation interest accruing after the date commencement of any proceeding of the type referred to in Section 4.02(g) or (h) or Section 14.5 of any Lease (for purposes of this Section 2.17, a "Case")) on, or any other amount payable in respect of, the Series ---- B Certificates, nor shall any payment or distribution be made on or in respect of any indemnity or other claim or obligation owing to any holder of a Series B Certificate under any Operative Agreements, in either case, except directly to the Indenture or incurred after the date Trustee for application as expressly provided in Article III of this Indenture but not to any other indebtedness of the Issuer other than Senior DebtIndenture.
(1b) In the event of any insolvency or bankruptcy proceedingsCase, and any receivership, liquidation, reorganization or other similar proceedings in connection therewith, relative to the Issuer 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 Issuer, whether or not involving insolvency or bankruptcy, then the holders of Senior Debt shall be entitled to receive payment in full of all principal and interest on all Senior Debt before the holders of the Subordinated Securities of any series, or any Coupons appertaining thereto, are entitled to receive any payment on account of principal or interest thereon, 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 Debt and the holders thereof with respect to the subordinated indebtedness represented by the Subordinated Securities of such series, or any Coupons appertaining thereto, and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Debt shall be entitled to receive for application in payment thereof any payment or distribution of any kind or character, whether in cash cash, property, stock or property or securities, obligations which may be payable or deliverable in any such proceedings on or in respect of any Series B Certificate or other sum owing to any holder of a Series B Certificate under the Subordinated Securities of such series, Operative Agreements shall be paid or any Coupons appertaining thereto, except securities which are subordinate and junior in right of payment delivered directly to the payment of all Senior Debt then outstanding; and
(2) in the event that pursuant Indenture Trustee for distribution to any provision of the Indenture or the Subordinated Securities of any series, or any Coupons appertaining thereto, the Subordinated Securities of such series are declared or otherwise become due and payable before their expressed maturity because of the occurrence of an Event of Default hereunder or otherwise (under circumstances when the provisions of the foregoing clause (1) shall not be applicable), the holders of the Senior Debt outstanding at Series A Certificates as provided in Article III. In the time event that, notwithstanding the Subordinated Securities of foregoing, any such series, payment or any Coupons appertaining thereto, so become due and payable distribution shall be entitled to receive payment received by the holder (other than from the Indenture Trustee as provided in full Article III) of TRUST INDENTURE any Series B Certificate before the amount of all principal of and interest on all Senior Debt before Series A Certificates (including, without limitation, interest accruing after the commencement of a Case) and all other sums owing to the holders of the Subordinated Securities Series A Certificates under the Operative Agreements is paid in full in cash, or provision made for such payment, in accordance with its terms, such payment or distribution shall be held in trust for and paid over or delivered to the Indenture Trustee for distribution to the holders of the Series A Certificates as provided in Article III.
(c) By acceptance of its Series B Certificate, each holder of a Series B Certificate hereby irrevocably authorizes and empowers the holders of the Series A Certificates, or the Indenture Trustee acting on their behalf, to demand, ▇▇▇ for, collect and receive every payment or distribution made on or in respect of the Series B Certificates or other sums owing to the holders thereof under the Operative Agreements in any Case, and to file claims and take such seriesother proceedings, in the holders' of the Series A Certificates own name or in the name of the holders of the Series B Certificates or otherwise, as the holders of the Series A Certificates or the Indenture Trustee acting on their behalf may deem necessary or advisable for the enforcement of the provisions hereof. By the acceptance of its Series B Certificate, each holder of a Series B Certificate agrees duly and promptly to take such action as may be requested by the holders of the Series A Certificates or the Indenture Trustee acting on their behalf to collect the indebtedness evidenced by its Series B Certificate owing to it or otherwise owing to it under the Operative Agreements for the account of the holders of the Series A Certificates and/or to file appropriate proofs of claim in respect to such indebtedness, and to execute and deliver to the holders of the Series A Certificates or the Indenture Trustee acting on their behalf on demand such powers of attorney, proofs of claim, assignments of claim or proofs of claim, or other instruments as may be requested by the holders of the Series A Certificates or the Indenture Trustee acting on their behalf to enforce any and all claims upon or with respect to its Series B Certificate owing to it or otherwise owing to it under the Operative Agreements.
(d) Except as otherwise expressly provided in this Indenture, the holders of the Series A Certificates or the TRUST INDENTURE Indenture Trustee acting on their behalf may, at any time and from time to time, without the consent of or notice to the holders of the Series B Certificates, without incurring responsibility to such holders and without impairing or releasing any of the rights of the holders of the Series A Certificates, or any Coupons appertaining thereto, are of the obligations of the holders of the Series B Certificates hereunder:
(i) to the extent it is entitled to receive do so hereunder, sell, exchange, release or otherwise deal with all or any payment due solely part of any property by reason of such accelerationwhomsoever mortgaged or pledged to secure, or howsoever securing, the Series A Certificates;
(ii) to the extent it is entitled to do so hereunder, exercise or refrain from exercising any rights against the Owner Trustee or the Lessee or any other Person; and
(3iii) to the extent it is entitled to do so hereunder and the same are applied in accordance with Article III, apply any sums, by whomsoever paid or however realized, to the series a certificates.
(e) By the acceptance of its series B certificate, each holder of a series B certificate agrees that in the event that such holder shall receive any payment on its series B certificate or otherwise owing to it under the operative agreements which it is not entitled to receive under this section 2.17 or Article III, it will hold any amount so received in trust for the holders of the Series A Certificates and will forthwith turn over such payment to the Indenture Trustee on behalf of the holders of series A Certificates in the form received to be applied as provided in Article III.
(f) By the acceptance of its Series B Certificate, each holder of a Series B Certificate agrees that it may not commence any action or proceeding against the Owner Trustee the Owner Participant, the Lessee or any other Person obligated in respect of any default Operative Agreements to recover all or any part of the principal or interest on its Series B Certificate or any other sum owing to it under any Operative Agreements or join with any creditor, unless the holders of TRUST INDENTURE the Series A Certificates shall also join, in bringing any such action or proceeding.
(g) By the acceptance of its Series B Certificate, each holder of a Series B Certificate hereby irrevocably authorizes and empowers the Indenture Trustee on behalf of the holders of the Series A Certificates to vote the full amount of the indebtedness evidenced by its Series B Certificate owing to it or otherwise owing to it under the Operative Agreements in any Case.
(h) No payment or distribution of assets to which the holders of the Series B Certificates would have been entitled except for the provisions of this Section 2.17 or Article III and which shall have been received by the holders of the Series A Certificates shall, as between the obligor thereon, its creditors, and the holder of the Series B Certificates, be deemed to be a payment by the obligor to the holders of the Series A Certificates for or on account of the Series A Certificates, and from and after the payment in full in cash of any Senior Debt all Series A Certificates and during all other amounts owing to the continuance holders thereof under the Operative Agreements, the holders of any such default, no amount the Series B Certificates shall be paid, whether in cash, property, securities, subrogated to the then or otherwise, thereafter existing rights of the holders of Series A Certificates to receive payments or distributions of assets of the relevant obligor made on or in respect of the Series A Certificates or such other amounts until the principal of of, and interest on, the Series B Certificates and all other amounts owing to the holders thereof under the Operative Agreements shall be paid in full, and no such payments or interest such other amounts or distributions to the holders of the Subordinated Securities Series B Certificates of any seriescash, property or any Coupons appertaining theretosecurities, if either (a) notice of such default in writing has been given which otherwise would be payable or distributable to the Issuer by any holder or holders of any Senior Debt; provided that judicial proceedings shall be commenced with respect to such default within 30 days thereafterthe Series A Certificates, or (b) judicial proceedings shall be pending in respect shall, as between the obligor thereon, its creditors other than the holders of such default. No present or future the Series A Certificates, and the holder of Senior Debt shall the Series B Certificates, be prejudiced in his right deemed to enforce subordination be a payment by the relevant obligor to the holder of the Subordinated Securities of any series, or any Coupons appertaining thereto, by any act or failure to act Series B Certificates on the part of the Issuer. account thereof.
(i) The provisions of this Section 2.17 and Article Sixteen III are solely for the purpose of defining the relative rights of the holders of Senior Debt Series A Certificates on the one hand, and the Holders holders of the Subordinated Securities of such series, or any Coupons appertaining thereto, Series B Certificates on the other hand, and nothing herein shall impairshall, except as between the Issuer and the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, the obligation of the Issuer, which is unconditional and absolute, to pay TRUST INDENTURE be applied forthwith to the Holder thereof the principal thereof and (to the extent legally enforceable) interest on overdue principal thereon purpose for which such payment was made in accordance with the terms of the Subordinated Securities of such series, or any Coupons appertaining thereto, nor shall anything in this Article Sixteen prevent the Trustee or the Holder of any of the Subordinated Securities of such series, or any Coupons appertaining thereto, from exercising all remedies otherwise permitted by applicable law or under this Indenture upon default under this Indenture, subject to the rights, if any, under this Article Sixteen of holders of Senior Debt to receive cash, property or securities otherwise payable or deliverable to the Holders of the Subordinated Securities of such series, or any Coupons appertaining thereto. The Issuer agrees, for the benefit of the holders of Senior Debt, that in the event that any of the Subordinated Securities of such series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of a default under this Indenture (a) the Issuer will give prompt notice in writing of such happening to the holders of Senior Debt and (b) all Senior Debt shall forthwith become immediately due and payable upon demand regardless of the expressed maturity thereof. No right of any present or future holder of any Senior Debt 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 by any noncompliance by the Issuer with the terms, provisions and covenants of this Article Sixteen, regardless of any knowledge thereof any such holder may have or be charged with.
Appears in 1 contract
Sources: Sale and Lease Agreement (American Income Fund I-D)