Contract Payments. (a) Subject to Section 2.7, the Company shall pay, in arrears on each Payment Date, the Contract Payments payable in respect of each Stock Purchase Contract to the Property Trustee or upon its order. The Contract Payments will be payable by wire transfer to the account designated by the Property Trustee by a prior written notice to the Company. The Contract Payments will accrue from and including October 25, 2006 or from and including the most recent Payment Date on which Contract Payments have been paid or duly provided for (subject to deferral as set forth in Section 2.7) to but excluding the next succeeding Payment Date. Contract Payments will be calculated on the basis of a 360-day year consisting of twelve 30-day months. (b) The Company’s obligations with respect to Contract Payments, if any, will be subordinated and junior in right of payment to the Company’s obligations under any Senior Debt to the extent and in the manner set forth in Sections 2.6(c) through (m). (c) No payment or distribution in respect of any Contract Payments shall be made by the Company unless full payment of amounts then due for principal (and premium, if any), sinking funds, and interest on Senior Debt of the Company has been made or duly provided for in money or money’s worth in accordance with its terms. No payment or distribution in respect of any Contract Payments shall be made by the Company if, at the time of such payment or immediately after giving effect thereto, there shall have occurred an event of default with respect to any Senior Debt of the Company or in any instrument under which the same is outstanding, or an event of default with respect to any Senior Debt of the Company resulting in the acceleration of the maturity thereof, or if any judicial proceedings are pending with respect to any such default. (d) Upon the occurrence of any event of default referred to in Section 2.6(a) that shall not have been cured or waived: (i) all Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to the Property Trustee in respect of Contract Payments; (ii) any payment or distribution, whether in cash, securities or other property that would otherwise (but for these subordination provisions) be payable or deliverable in respect of Contract Payments shall be paid or delivered directly to the holders of Senior Debt in accordance with the priorities then existing among such holders until all Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full; (iii) after payment in full of all sums owing with respect to Senior Debt, the Property Trustee, together with the holders of any obligations of the Company ranking on a parity with the Contract Payments, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid Contract Payments and interest thereon and such other obligations before any payment or other distribution, whether in cash, securities or other property, shall be made on account of any capital stock of the Company or any obligations of the Company ranking junior to the Company’s obligations to make Contract Payments under the Stock Purchase Contracts and such other obligations; and (iv) in the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property, shall be received by the Property Trustee or the Issuer Trust in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred back to the transferor for distribution, or to the holders of the Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in full. In the event of the failure of the Property Trustee or the Issuer Trust to endorse or assign any such payment, distribution or security, each holder of Senior Debt is hereby irrevocably authorized to endorse or assign the same. (e) For purposes of Sections 2.6(c) through (p), the words “cash, securities or other property” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in Sections 2.6(b) through (m) with respect to such Contract Payments on the Stock Purchase Contracts to the payment of all Senior Debt that may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior Debt is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Debt are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment. (f) Any failure by the Company to make any payment on or perform any other obligation under Senior Debt, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of Sections 2.6(b) through (m) shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default if (i) the Company shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Company that is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or (B) in the event a judgment that is subject to further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review. (g) Subject to the irrevocable payment in full of all Senior Debt, the Property Trustee on behalf of the Issuer Trust shall be subrogated (equally and ratably with the holders of all obligations of the Company that by their express terms are subordinated to Senior Debt of the Company to the same extent as payment of the Contract Payments in respect of the Stock Purchase Contracts is subordinated and that are entitled to like rights of subrogation) to the rights of the holders of Senior Debt to receive payments or distributions of cash, securities or other property of the Company applicable to the Senior Debt until all such Contract Payments owing on the Stock Purchase Contracts shall be paid in full, and as between the Company, its creditors other than holders of such Senior Debt and the Property Trustee, no such payment or distribution made to the holders of Senior Debt by virtue of Sections 2.6(b) through (m) that otherwise would have been made to the Property Trustee shall be deemed to be a payment by the Company on account of such Senior Debt, it being understood that the provisions of Sections 2.6(b) through (m) are intended solely for the purpose of defining the relative rights of the Property Trustee, on the one hand, and the holders of Senior Debt, on the other hand. (h) Nothing contained in Sections 2.6(b) through (m) or elsewhere in this Agreement is intended to or shall impair, as among the Company, its creditors other than the holders of Senior Debt and the Property Trustee, the obligation of the Company, which is absolute and unconditional, to pay to the Property Trustee such Contract Payments on the Stock Purchase Contracts as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Property Trustee and creditors of the Company other than the holders of Senior Debt, nor shall anything herein or therein prevent the Property Trustee from exercising all remedies otherwise permitted by applicable law upon default under this Agreement, subject to the rights, if any, under Sections 2.6(b) through (m), of the holders of Senior Debt in respect of cash, securities or other property of the Company received upon the exercise of any such remedy. (i) Upon payment or distribution of assets of the Company referred to in Sections 2.6(b) through (m), the Property Trustee shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, conservator, assignee for the benefit of creditors, liquidating trustee or other Person making any payment or distribution, delivered to the Property Trustee, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to Sections 2.6(b) through (m); provided that the foregoing shall not be construed as creating any duty on the part of the Property Trustee. (j) The Property Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior Debt or a trustee or representative on behalf of any such holder or holders. In the event that the Property Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payment or distribution pursuant to Section 2.6(b) through (m), the Property Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Property Trustee as to the amount of Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under Sections 2.6(b) through (m), and, if such evidence is not furnished, the Property Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment, provided that the foregoing shall not be construed as imposing any obligation or duty on the part of the Property Trustee. (k) Nothing contained in Sections 2.6(b) through (m) shall affect the obligations of the Company to make, or prevent the Company from making, payment of the Contract Payments, except as otherwise provided in Sections 2.6(b) through (m). (l) U.S. Bank National Association, or any successor Property Trustee, in its individual capacity shall be entitled to all the rights set forth in this Section with respect to any Senior Debt at the time held by it, to the same extent as any other holder of Senior Debt and nothing in this Agreement shall deprive U.S. Bank National Association, or any successor Property Trustee of any of its rights as such holder. (m) No right of any present or future holder of any Senior Debt to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of this Agreement, regardless of any knowledge thereof that any such holder may have or be otherwise charged with. (n) Nothing in this Section 2.6 shall apply to claims of, or payments to, the Property Trustee under or pursuant to Section 2.7. (o) With respect to the holders of Senior Debt, (i) the Property Trustee shall not be liable to any such holders if it shall pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior Debt shall be entitled by virtue of this Section 2.6 or otherwise; (ii) no implied covenants or obligations shall be read into this Agreement against the Property Trustee; and (iii) the Property Trustee shall owe no duties, fiduciary or otherwise, to such holders. (p) Nothing in this Section 2.6 shall apply to any payment or distribution, whether in cash, securities or other property, made to, or paid over or distributed by, any Paying Agent in respect of Contract Payments or otherwise. The Paying Agent shall owe no duty, fiduciary or otherwise, to any holder of Senior Debt and shall not be liable to any holders of Senior Debt if it shall pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior Debt shall otherwise be entitled by virtue of this Section 2.6 or otherwise; and no implied covenants or obligations shall be read into this Agreement against the Paying Agent.
Appears in 2 contracts
Samples: Stock Purchase Contract Agreement (SunTrust Preferred Capital I), Stock Purchase Contract Agreement (Suntrust Banks Inc)
Contract Payments. (a) Subject to Section 2.7, the Company shall pay, in arrears on each Payment Date, the Contract Payments payable in respect of each Stock Purchase Contract to the Property Trustee or upon its order. The Contract Payments will be payable by wire transfer to the account designated by the Property Trustee by a prior written notice to the Company. The Contract Payments will accrue from and including October 25March 17, 2006 or from and including the most recent Payment Date on which Contract Payments have been paid or duly provided for (subject to deferral as set forth in Section 2.7) to but excluding the next succeeding Payment Date. Contract Payments will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
(b) The Company’s obligations with respect to Contract Payments, if any, will be subordinated and junior in right of payment to the Company’s obligations under any Senior and Subordinated Debt to the extent and in the manner set forth in Sections 2.6(c2.6(b) through (ml).
(c) No payment In the event of (A) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or distribution in other similar proceeding with respect to the Company, its creditors or its property, (B) any proceeding for the voluntary or involuntary liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy proceedings, (C) any Contract Payments shall be made assignment by the Company unless full payment for the benefit of amounts then due for principal creditors, or (and premium, if any), sinking funds, and interest on Senior Debt D) any other marshalling of the Company has been made or duly provided for in money or money’s worth in accordance with its terms. No payment or distribution in respect of any Contract Payments shall be made by the Company if, at the time of such payment or immediately after giving effect thereto, there shall have occurred an event of default with respect to any Senior Debt assets of the Company or in any instrument under which the same is outstanding, or an event of default with respect to any Senior Debt of the Company resulting in the acceleration of the maturity thereof, or if any judicial proceedings are pending with respect to any such default.
(d) Upon the occurrence of any event of default referred to in Section 2.6(a) that shall not have been cured or waivedCompany:
(i) all Senior and Subordinated Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to the Property Trustee in respect of Contract Payments;
(ii) any payment or distribution, whether in cash, securities or other property that would otherwise (but for these subordination provisions) be payable or deliverable in respect of Contract Payments shall be paid or delivered directly to the holders of Senior and Subordinated Debt in accordance with the priorities then existing among such holders until all Senior and Subordinated Debt (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full;
(iii) after payment in full of all sums owing with respect to Senior and Subordinated Debt, the Property Trustee, together with the holders of any obligations of the Company ranking on a parity with the Contract Payments, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid Contract Payments and interest thereon and such other obligations before any payment or other distribution, whether in cash, securities or other property, shall be made on account of any capital stock of the Company or any obligations of the Company ranking junior to the Company’s obligations to make Contract Payments under the Stock Purchase Contracts and such other obligations; and
(iv) in the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property, shall be received by the Property Trustee or the Issuer Trust in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred back to the transferor for distributionto, or to the holders of the Senior and Subordinated Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior and Subordinated Debt remaining unpaid, to the extent necessary to pay all such Senior and Subordinated Debt in full. In the event of the failure of the Property Trustee or the Issuer Trust to endorse or assign any such payment, distribution or security, each holder of Senior and Subordinated Debt is hereby irrevocably authorized to endorse or assign the same.
(ed) For purposes of Sections 2.6(c2.6(b) through (pl), the words “cash, securities or other property” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in Sections 2.6(b) through (ml) with respect to such Contract Payments on the Stock Purchase Contracts to the payment of all Senior and Subordinated Debt that may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior and Subordinated Debt is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior and Subordinated Debt are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment.
(fe) Any failure by the Company to make any payment on or perform any other obligation under Senior and Subordinated Debt, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of Sections 2.6(b) through (ml) shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default if (i) the Company shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Company that is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or (B) in the event a judgment that is subject to further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.
(gf) Subject to the irrevocable payment in full of all Senior and Subordinated Debt, the Property Trustee on behalf of the Issuer Trust shall be subrogated (equally and ratably with the holders of all obligations of the Company that by their express terms are subordinated to Senior and Subordinated Debt of the Company to the same extent as payment of the Contract Payments in respect of the Stock Purchase Contracts is subordinated and that are entitled to like rights of subrogation) to the rights of the holders of Senior and Subordinated Debt to receive payments or distributions of cash, securities or other property of the Company applicable to the Senior and Subordinated Debt until all such Contract Payments owing on the Stock Purchase Contracts shall be paid in full, and as between the Company, its creditors other than holders of such Senior and Subordinated Debt and the Property Trustee, no such payment or distribution made to the holders of Senior and Subordinated Debt by virtue of Sections 2.6(b) through (ml) that otherwise would have been made to the Property Trustee shall be deemed to be a payment by the Company on account of such Senior and Subordinated Debt, it being understood that the provisions of Sections 2.6(b) through (ml) are intended solely for the purpose of defining the relative rights of the Property Trustee, on the one hand, and the holders of Senior and Subordinated Debt, on the other hand.
(hg) Nothing contained in Sections 2.6(b) through (ml) or elsewhere in this Agreement is intended to or shall impair, as among the Company, its creditors other than the holders of Senior and Subordinated Debt and the Property Trustee, the obligation of the Company, which is absolute and unconditional, to pay to the Property Trustee such Contract Payments on the Stock Purchase Contracts as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Property Trustee and creditors of the Company other than the holders of Senior and Subordinated Debt, nor shall anything herein or therein prevent the Property Trustee from exercising all remedies otherwise permitted by applicable law upon default under this Agreement, subject to the rights, if any, under Sections 2.6(b) through (ml), of the holders of Senior and Subordinated Debt in respect of cash, securities or other property of the Company received upon the exercise of any such remedy.
(ih) Upon payment or distribution of assets of the Company referred to in Sections 2.6(b) through (ml), the Property Trustee shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, conservator, assignee for the benefit of creditors, liquidating trustee or other Person making any payment or distribution, delivered to the Property Trustee, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior and Subordinated Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to Sections 2.6(b) through (ml); provided that the foregoing shall not be construed as creating any duty on the part of the Property Trustee.
(ji) The Property Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior and Subordinated Debt (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior and Subordinated Debt or a trustee or representative on behalf of any such holder or holders. In the event that the Property Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior and Subordinated Debt to participate in any payment or distribution pursuant to Section 2.6(b) through (ml), the Property Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Property Trustee as to the amount of Senior and Subordinated Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under Sections 2.6(b) through (ml), and, if such evidence is not furnished, the Property Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment, provided that the foregoing shall not be construed as imposing any obligation or duty on the part of the Property Trustee.
(kj) Nothing contained in Sections 2.6(b) through (ml) shall affect the obligations of the Company to make, or prevent the Company from making, payment of the Contract Payments, except as otherwise provided in Sections 2.6(b) through (ml).
(lk) U.S. Bank National AssociationWilmington Trust Company, or any successor Property Trustee, in its individual capacity shall be entitled to all the rights set forth in this Section with respect to any Senior and Subordinated Debt at the time held by it, to the same extent as any other holder of Senior and Subordinated Debt and nothing in this Agreement shall deprive U.S. Bank National AssociationWilmington Trust Company, or any successor Property Trustee of any of its rights as such holder.
(ml) No right of any present or future holder of any Senior and Subordinated Debt to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of this Agreement, regardless of any knowledge thereof that any such holder may have or be otherwise charged with.
(nm) Nothing in this Section 2.6 shall apply to claims of, or payments to, the Property Trustee under or pursuant to Section 2.7.
(on) With respect to the holders of Senior and Subordinated Debt, (i) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Agreement; (ii) the Property Trustee shall not be liable to any such holders if it shall shall, acting in good faith, mistakenly pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior and Subordinated Debt shall be entitled by virtue of this Section 2.6 or otherwise; (iiiii) no implied covenants or obligations shall be read into this Agreement against the Property Trustee; and (iiiiv) the Property Trustee shall owe no duties, not be deemed to be a fiduciary or otherwise, as to such holders.
(po) Nothing in this Section 2.6 shall apply to any payment or distribution, whether in cash, securities or other property, made to, or paid over or distributed by, any Paying Agent in respect of Contract Payments or otherwise. The Paying Agent shall owe no duty, fiduciary or otherwise, to any holder of Senior and Subordinated Debt and shall not be liable to any holders of Senior and Subordinated Debt if it shall pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior and Subordinated Debt shall otherwise be entitled by virtue of this Section 2.6 or otherwise; and no implied covenants or obligations shall be read into this Agreement against the Paying Agent.
Appears in 2 contracts
Samples: Stock Purchase Contract Agreement (Us Bancorp \De\), Stock Purchase Contract Agreement (Us Bancorp \De\)
Contract Payments. (a) Subject to Section 2.7, the Company shall pay, in arrears on each Payment Date, or if such day is not a Business Day, the next Business Day, the Contract Payments payable in respect of each Stock Purchase Contract to the Property Trustee or upon its order. The Contract Payments will be payable by wire transfer to the account designated by the Property Trustee by a prior written notice to the Company. The Contract Payments will accrue from and including October 25February 16, 2006 2007 or from and including the most recent Payment Date on which Contract Payments have been paid or duly provided for (subject to deferral as set forth in Section 2.7) to but excluding the next succeeding Payment Date. Contract Payments will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
(b) The Company’s obligations with respect to Contract Payments, if any, will be subordinated and junior in right of payment to the Company’s obligations under any Senior Debt Obligations to the extent and in the manner set forth in Sections 2.6(c2.6(b) through (m)l) and will rank pari passu with the following obligations: (i) the Notes, (ii) the Company’s Remarketable Floating Rate Notes due 2043, (iii) the Company’s Guarantee in respect of the HITS, (iv) the Company’s Guarantee in respect of the HITS issued by BAC Capital Trust XIII, (v) the Company’s Guarantee in respect of the Trust Common Securities issued by the Trust, (vi) the Company’s Guarantee in respect of the Trust Common Securities issued by BAC Capital Trust XIII and (vii) the Stock Purchase Contracts issued by the Company in respect of the HITS issued by BAC Capital Trust XIII.
(c) No payment In the event of (i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or distribution in other similar proceeding with respect to the Company, its creditors or its property, (ii) any proceeding for the voluntary or involuntary liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy proceedings, (iii) any Contract Payments shall be made assignment by the Company unless full payment for the benefit of amounts then due for principal creditors, or (and premium, if any), sinking funds, and interest on Senior Debt iv) any other marshalling of the Company has been made or duly provided for in money or money’s worth in accordance with its terms. No payment or distribution in respect of any Contract Payments shall be made by the Company if, at the time of such payment or immediately after giving effect thereto, there shall have occurred an event of default with respect to any Senior Debt assets of the Company or in any instrument under which the same is outstanding, or an event of default with respect to any Senior Debt of the Company resulting in the acceleration of the maturity thereof, or if any judicial proceedings are pending with respect to any such default.
(d) Upon the occurrence of any event of default referred to in Section 2.6(a) that shall not have been cured or waivedCompany:
(iA) all Senior Debt Obligations (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to the Property Trustee in respect of Contract Payments;
(iiB) any payment or distribution, whether in cash, securities or other property that would otherwise (but for these subordination provisions) be payable or deliverable in respect of Contract Payments shall be paid or delivered directly to the holders of Senior Debt Obligations in accordance with the priorities then existing among such holders until all Senior Debt Obligations (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full;
(iiiC) after payment in full of all sums owing with respect to Senior DebtObligations, the Property Trustee, together with the holders of any obligations of the Company ranking on a parity with the Contract Payments, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid Contract Payments and interest thereon and such other obligations before any payment or other distribution, whether in cash, securities or other property, shall be made on account of any capital stock of the Company or any obligations of the Company ranking junior to the Company’s obligations to make Contract Payments under the Stock Purchase Contracts and such other obligations; and
(ivD) in the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property, shall be received by the Property Trustee or the Issuer Trust in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred back to the transferor for distributionto, or to the holders of the Senior Debt Obligations at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Debt Obligations remaining unpaid, to the extent necessary to pay all such Senior Debt Obligations in full. In the event of the failure of the Property Trustee or the Issuer Trust to endorse or assign any such payment, distribution or security, each holder of Senior Debt Obligations is hereby irrevocably authorized to endorse or assign the same.
(ed) For purposes of Sections 2.6(c2.6(b) through (pl), the words “cash, securities or other property” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in Sections 2.6(b) through (ml) with respect to such Contract Payments on the Stock Purchase Contracts to the payment of all Senior Debt Obligations that may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior Debt Obligations is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Debt Obligations are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment.
(fe) Any failure by the Company to make any payment on or perform any other obligation under Senior DebtObligations, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of Sections 2.6(b) through (ml) shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default if (i) the Company shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Company that is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or (B) in the event a judgment that is subject to further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.
(gf) Subject to the irrevocable payment in full of all Senior DebtObligations, the Property Trustee on behalf of the Issuer Trust shall be subrogated (equally and ratably with the holders of all obligations of the Company that by their express terms are subordinated to Senior Debt Obligations of the Company to the same extent as payment of the Contract Payments in respect of the Stock Purchase Contracts is subordinated and that are entitled to like rights of subrogation) to the rights of the holders of Senior Debt Obligations to receive payments or distributions of cash, securities or other property of the Company applicable to the Senior Debt Obligations until all such Contract Payments owing on the Stock Purchase Contracts shall be paid in full, and as between the Company, its creditors other than holders of such Senior Debt Obligations and the Property Trustee, no such payment or distribution made to the holders of Senior Debt Obligations by virtue of Sections 2.6(b) through (ml) that otherwise would have been made to the Property Trustee shall be deemed to be a payment by the Company on account of such Senior DebtObligations, it being understood that the provisions of Sections 2.6(b) through (ml) are intended solely for the purpose of defining the relative rights of the Property Trustee, on the one hand, and the holders of Senior DebtObligations, on the other hand.
(hg) Nothing contained in Sections 2.6(b) through (ml) or elsewhere in this Agreement is intended to or shall impair, as among the Company, its creditors other than the holders of Senior Debt Obligations and the Property Trustee, the obligation of the Company, which is absolute and unconditional, to pay to the Property Trustee such Contract Payments on the Stock Purchase Contracts as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Property Trustee and creditors of the Company other than the holders of Senior DebtObligations, nor shall anything herein or therein prevent the Property Trustee from exercising all remedies otherwise permitted by applicable law upon default under this Agreement, subject to the rights, if any, under Sections 2.6(b) through (ml), of the holders of Senior Debt Obligations in respect of cash, securities or other property of the Company received upon the exercise of any such remedy.
(ih) Upon payment or distribution of assets of the Company referred to in Sections 2.6(b) through (ml), the Property Trustee shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, conservator, assignee for the benefit of creditors, liquidating trustee or other Person making any payment or distribution, delivered to the Property Trustee, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Debt Obligations and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to Sections 2.6(b) through (ml); provided that the foregoing shall not be construed as creating any duty on the part of the Property Trustee.
(ji) The Property Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt Obligations (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior Debt Obligations or a trustee or representative on behalf of any such holder or holders. In the event that the Property Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Debt Obligations to participate in any payment or distribution pursuant to Section 2.6(b) through (ml), the Property Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Property Trustee as to the amount of Senior Debt Obligations held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under Sections 2.6(b) through (ml), and, if such evidence is not furnished, the Property Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment, provided that the foregoing shall not be construed as imposing any obligation or duty on the part of the Property Trustee.
(kj) Nothing contained in Sections 2.6(b) through (ml) shall affect the obligations of the Company to make, or prevent the Company from making, payment of the Contract Payments, except as otherwise provided in Sections 2.6(b) through (ml).
(lk) U.S. The Bank National Associationof New York, or any successor Property Trustee, in its individual capacity shall be entitled to all the rights set forth in this Section with respect to any Senior Debt Obligations at the time held by it, to the same extent as any other holder of Senior Debt Obligations and nothing in this Agreement shall deprive U.S. The Bank National Associationof New York, or any successor Property Trustee of any of its rights as such holder.
(ml) No right of any present or future holder of any Senior Debt Obligations to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of this Agreement, regardless of any knowledge thereof that any such holder may have or be otherwise charged with.
(nm) Nothing in this Section 2.6 shall apply to claims of, or payments to, the Property Trustee under or pursuant to Section 2.7.
(on) With respect to the holders of Senior DebtObligations, (i) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Agreement; (ii) the Property Trustee shall not be liable to any such holders if it shall shall, acting in good faith, mistakenly pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior Debt Obligations shall be entitled by virtue of this Section 2.6 or otherwise; (iiiii) no implied covenants or obligations shall be read into this Agreement against the Property Trustee; and (iiiiv) the Property Trustee shall owe no duties, not be deemed to be a fiduciary or otherwise, as to such holders.
(po) Nothing in this Section 2.6 shall apply to any payment or distribution, whether in cash, securities or other property, made to, or paid over or distributed by, any Paying Agent in respect of Contract Payments or otherwise. The Paying Agent shall owe no duty, fiduciary or otherwise, to any holder of Senior Debt Obligations and shall not be liable to any holders of Senior Debt Obligations if it shall pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior Debt Obligations shall otherwise be entitled by virtue of this Section 2.6 or otherwise; and no implied covenants or obligations shall be read into this Agreement against the Paying Agent.
Appears in 1 contract
Samples: Stock Purchase Contract Agreement (Bank of America Corp /De/)
Contract Payments. (a) Subject to Section 2.7, the Company shall pay, in arrears on each Payment Date, or if such day is not a Business Day, the next Business Day, the Contract Payments payable in respect of each Stock Purchase Contract to the Property Trustee or upon its order. The Contract Payments will be payable by wire transfer to the account designated by the Property Trustee by a prior written notice to the Company. The Contract Payments will accrue from and including October 25February , 2006 2007 or from and including the most recent Payment Date on which Contract Payments have been paid or duly provided for (subject to deferral as set forth in Section 2.7) to but excluding the next succeeding Payment Date. Contract Payments will be calculated on the basis of a 360-day year consisting for the number of twelve 30-day monthsdays that have actually elapsed.
(b) The Company’s obligations with respect to Contract Payments, if any, will be subordinated and junior in right of payment to the Company’s obligations under any Senior and Subordinated Debt to the extent and in the manner set forth in Sections 2.6(c2.6(b) through (ml).
(c) No payment In the event of (i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or distribution in other similar proceeding with respect to the Company, its creditors or its property, (ii) any proceeding for the voluntary or involuntary liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy proceedings, (iii) any Contract Payments shall be made assignment by the Company unless full payment for the benefit of amounts then due for principal creditors, or (and premium, if any), sinking funds, and interest on Senior Debt iv) any other marshalling of the Company has been made or duly provided for in money or money’s worth in accordance with its terms. No payment or distribution in respect of any Contract Payments shall be made by the Company if, at the time of such payment or immediately after giving effect thereto, there shall have occurred an event of default with respect to any Senior Debt assets of the Company or in any instrument under which the same is outstanding, or an event of default with respect to any Senior Debt of the Company resulting in the acceleration of the maturity thereof, or if any judicial proceedings are pending with respect to any such default.
(d) Upon the occurrence of any event of default referred to in Section 2.6(a) that shall not have been cured or waivedCompany:
(iA) all Senior and Subordinated Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to the Property Trustee in respect of Contract Payments;
(iiB) any payment or distribution, whether in cash, securities or other property that would otherwise (but for these subordination provisions) be payable or deliverable in respect of Contract Payments shall be paid or delivered directly to the holders of Senior and Subordinated Debt in accordance with the priorities then existing among such holders until all Senior and Subordinated Debt (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full;
(iiiC) after payment in full of all sums owing with respect to Senior and Subordinated Debt, the Property Trustee, together with the holders of any obligations of the Company ranking on a parity with the Contract Payments, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid Contract Payments and interest thereon and such other obligations before any payment or other distribution, whether in cash, securities or other property, shall be made on account of any capital stock of the Company or any obligations of the Company ranking junior to the Company’s obligations to make Contract Payments under the Stock Purchase Contracts and such other obligations; and
(ivD) in the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property, shall be received by the Property Trustee or the Issuer Trust in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred back to the transferor for distributionto, or to the holders of the Senior and Subordinated Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior and Subordinated Debt remaining unpaid, to the extent necessary to pay all such Senior and Subordinated Debt in full. In the event of the failure of the Property Trustee or the Issuer Trust to endorse or assign any such payment, distribution or security, each holder of Senior and Subordinated Debt is hereby irrevocably authorized to endorse or assign the same.
(ed) For purposes of Sections 2.6(c2.6(b) through (pl), the words “cash, securities or other property” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in Sections 2.6(b) through (ml) with respect to such Contract Payments on the Stock Purchase Contracts to the payment of all Senior and Subordinated Debt that may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior and Subordinated Debt is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior and Subordinated Debt are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment.
(fe) Any failure by the Company to make any payment on or perform any other obligation under Senior and Subordinated Debt, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of Sections 2.6(b) through (ml) shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default if (i) the Company shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Company that is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or (B) in the event a judgment that is subject to further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.
(gf) Subject to the irrevocable payment in full of all Senior and Subordinated Debt, the Property Trustee on behalf of the Issuer Trust shall be subrogated (equally and ratably with the holders of all obligations of the Company that by their express terms are subordinated to Senior and Subordinated Debt of the Company to the same extent as payment of the Contract Payments in respect of the Stock Purchase Contracts is subordinated and that are entitled to like rights of subrogation) to the rights of the holders of Senior and Subordinated Debt to receive payments or distributions of cash, securities or other property of the Company applicable to the Senior and Subordinated Debt until all such Contract Payments owing on the Stock Purchase Contracts shall be paid in full, and as between the Company, its creditors other than holders of such Senior and Subordinated Debt and the Property Trustee, no such payment or distribution made to the holders of Senior and Subordinated Debt by virtue of Sections 2.6(b) through (ml) that otherwise would have been made to the Property Trustee shall be deemed to be a payment by the Company on account of such Senior and Subordinated Debt, it being understood that the provisions of Sections 2.6(b) through (ml) are intended solely for the purpose of defining the relative rights of the Property Trustee, on the one hand, and the holders of Senior and Subordinated Debt, on the other hand.
(hg) Nothing contained in Sections 2.6(b) through (ml) or elsewhere in this Agreement is intended to or shall impair, as among the Company, its creditors other than the holders of Senior and Subordinated Debt and the Property Trustee, the obligation of the Company, which is absolute and unconditional, to pay to the Property Trustee such Contract Payments on the Stock Purchase Contracts as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Property Trustee and creditors of the Company other than the holders of Senior and Subordinated Debt, nor shall anything herein or therein prevent the Property Trustee from exercising all remedies otherwise permitted by applicable law upon default under this Agreement, subject to the rights, if any, under Sections 2.6(b) through (ml), of the holders of Senior and Subordinated Debt in respect of cash, securities or other property of the Company received upon the exercise of any such remedy.
(ih) Upon payment or distribution of assets of the Company referred to in Sections 2.6(b) through (ml), the Property Trustee shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, conservator, assignee for the benefit of creditors, liquidating trustee or other Person making any payment or distribution, delivered to the Property Trustee, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior and Subordinated Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to Sections 2.6(b) through (ml); provided that the foregoing shall not be construed as creating any duty on the part of the Property Trustee.
(ji) The Property Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior and Subordinated Debt (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior and Subordinated Debt or a trustee or representative on behalf of any such holder or holders. In the event that the Property Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior and Subordinated Debt to participate in any payment or distribution pursuant to Section 2.6(b) through (ml), the Property Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Property Trustee as to the amount of Senior and Subordinated Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under Sections 2.6(b) through (ml), and, if such evidence is not furnished, the Property Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment, provided that the foregoing shall not be construed as imposing any obligation or duty on the part of the Property Trustee.
(kj) Nothing contained in Sections 2.6(b) through (ml) shall affect the obligations of the Company to make, or prevent the Company from making, payment of the Contract Payments, except as otherwise provided in Sections 2.6(b) through (ml).
(lk) U.S. The Bank National Associationof New York, or any successor Property Trustee, in its individual capacity shall be entitled to all the rights set forth in this Section with respect to any Senior and Subordinated Debt at the time held by it, to the same extent as any other holder of Senior and Subordinated Debt and nothing in this Agreement shall deprive U.S. The Bank National Associationof New York, or any successor Property Trustee of any of its rights as such holder.
(ml) No right of any present or future holder of any Senior and Subordinated Debt to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of this Agreement, regardless of any knowledge thereof that any such holder may have or be otherwise charged with.
(nm) Nothing in this Section 2.6 shall apply to claims of, or payments to, the Property Trustee under or pursuant to Section 2.7.
(on) With respect to the holders of Senior and Subordinated Debt, (i) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Agreement; (ii) the Property Trustee shall not be liable to any such holders if it shall shall, acting in good faith, mistakenly pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior and Subordinated Debt shall be entitled by virtue of this Section 2.6 or otherwise; (iiiii) no implied covenants or obligations shall be read into this Agreement against the Property Trustee; and (iiiiv) the Property Trustee shall owe no duties, not be deemed to be a fiduciary or otherwise, as to such holders.
(po) Nothing in this Section 2.6 shall apply to any payment or distribution, whether in cash, securities or other property, made to, or paid over or distributed by, any Paying Agent in respect of Contract Payments or otherwise. The Paying Agent shall owe no duty, fiduciary or otherwise, to any holder of Senior and Subordinated Debt and shall not be liable to any holders of Senior and Subordinated Debt if it shall pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior and Subordinated Debt shall otherwise be entitled by virtue of this Section 2.6 or otherwise; and no implied covenants or obligations shall be read into this Agreement against the Paying Agent.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bank of America Corp /De/)
Contract Payments. (a) Subject to Section 2.7, the Company shall pay, in arrears on each Payment Date, or if such day is not a Business Day, the next Business Day, the Contract Payments payable in respect of each Stock Purchase Contract to the Property Trustee or upon its order. The Contract Payments will be payable by wire transfer to the account designated by the Property Trustee by a prior written notice to the Company. The Contract Payments will accrue from and including October 25February , 2006 2007 or from and including the most recent Payment Date on which Contract Payments have been paid or duly provided for (subject to deferral as set forth in Section 2.7) to but excluding the next succeeding Payment Date. Contract Payments will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
(b) The Company’s obligations with respect to Contract Payments, if any, will be subordinated and junior in right of payment to the Company’s obligations under any Senior and Subordinated Debt to the extent and in the manner set forth in Sections 2.6(c2.6(b) through (ml).
(c) No payment In the event of (i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or distribution in other similar proceeding with respect to the Company, its creditors or its property, (ii) any proceeding for the voluntary or involuntary liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy proceedings, (iii) any Contract Payments shall be made assignment by the Company unless full payment for the benefit of amounts then due for principal creditors, or (and premium, if any), sinking funds, and interest on Senior Debt iv) any other marshalling of the Company has been made or duly provided for in money or money’s worth in accordance with its terms. No payment or distribution in respect of any Contract Payments shall be made by the Company if, at the time of such payment or immediately after giving effect thereto, there shall have occurred an event of default with respect to any Senior Debt assets of the Company or in any instrument under which the same is outstanding, or an event of default with respect to any Senior Debt of the Company resulting in the acceleration of the maturity thereof, or if any judicial proceedings are pending with respect to any such default.
(d) Upon the occurrence of any event of default referred to in Section 2.6(a) that shall not have been cured or waivedCompany:
(iA) all Senior and Subordinated Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to the Property Trustee in respect of Contract Payments;
(iiB) any payment or distribution, whether in cash, securities or other property that would otherwise (but for these subordination provisions) be payable or deliverable in respect of Contract Payments shall be paid or delivered directly to the holders of Senior and Subordinated Debt in accordance with the priorities then existing among such holders until all Senior and Subordinated Debt (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full;
(iiiC) after payment in full of all sums owing with respect to Senior and Subordinated Debt, the Property Trustee, together with the holders of any obligations of the Company ranking on a parity with the Contract Payments, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid Contract Payments and interest thereon and such other obligations before any payment or other distribution, whether in cash, securities or other property, shall be made on account of any capital stock of the Company or any obligations of the Company ranking junior to the Company’s obligations to make Contract Payments under the Stock Purchase Contracts and such other obligations; and
(ivD) in the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property, shall be received by the Property Trustee or the Issuer Trust in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred back to the transferor for distributionto, or to the holders of the Senior and Subordinated Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior and Subordinated Debt remaining unpaid, to the extent necessary to pay all such Senior and Subordinated Debt in full. In the event of the failure of the Property Trustee or the Issuer Trust to endorse or assign any such payment, distribution or security, each holder of Senior and Subordinated Debt is hereby irrevocably authorized to endorse or assign the same.
(ed) For purposes of Sections 2.6(c2.6(b) through (pl), the words “cash, securities or other property” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in Sections 2.6(b) through (ml) with respect to such Contract Payments on the Stock Purchase Contracts to the payment of all Senior and Subordinated Debt that may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior and Subordinated Debt is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior and Subordinated Debt are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment.
(fe) Any failure by the Company to make any payment on or perform any other obligation under Senior and Subordinated Debt, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of Sections 2.6(b) through (ml) shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default if (i) the Company shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Company that is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or (B) in the event a judgment that is subject to further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.
(gf) Subject to the irrevocable payment in full of all Senior and Subordinated Debt, the Property Trustee on behalf of the Issuer Trust shall be subrogated (equally and ratably with the holders of all obligations of the Company that by their express terms are subordinated to Senior and Subordinated Debt of the Company to the same extent as payment of the Contract Payments in respect of the Stock Purchase Contracts is subordinated and that are entitled to like rights of subrogation) to the rights of the holders of Senior and Subordinated Debt to receive payments or distributions of cash, securities or other property of the Company applicable to the Senior and Subordinated Debt until all such Contract Payments owing on the Stock Purchase Contracts shall be paid in full, and as between the Company, its creditors other than holders of such Senior and Subordinated Debt and the Property Trustee, no such payment or distribution made to the holders of Senior and Subordinated Debt by virtue of Sections 2.6(b) through (ml) that otherwise would have been made to the Property Trustee shall be deemed to be a payment by the Company on account of such Senior and Subordinated Debt, it being understood that the provisions of Sections 2.6(b) through (ml) are intended solely for the purpose of defining the relative rights of the Property Trustee, on the one hand, and the holders of Senior and Subordinated Debt, on the other hand.
(hg) Nothing contained in Sections 2.6(b) through (ml) or elsewhere in this Agreement is intended to or shall impair, as among the Company, its creditors other than the holders of Senior and Subordinated Debt and the Property Trustee, the obligation of the Company, which is absolute and unconditional, to pay to the Property Trustee such Contract Payments on the Stock Purchase Contracts as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Property Trustee and creditors of the Company other than the holders of Senior and Subordinated Debt, nor shall anything herein or therein prevent the Property Trustee from exercising all remedies otherwise permitted by applicable law upon default under this Agreement, subject to the rights, if any, under Sections 2.6(b) through (ml), of the holders of Senior and Subordinated Debt in respect of cash, securities or other property of the Company received upon the exercise of any such remedy.
(ih) Upon payment or distribution of assets of the Company referred to in Sections 2.6(b) through (ml), the Property Trustee shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, conservator, assignee for the benefit of creditors, liquidating trustee or other Person making any payment or distribution, delivered to the Property Trustee, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior and Subordinated Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to Sections 2.6(b) through (ml); provided that the foregoing shall not be construed as creating any duty on the part of the Property Trustee.
(ji) The Property Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior and Subordinated Debt (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior and Subordinated Debt or a trustee or representative on behalf of any such holder or holders. In the event that the Property Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior and Subordinated Debt to participate in any payment or distribution pursuant to Section 2.6(b) through (ml), the Property Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Property Trustee as to the amount of Senior and Subordinated Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under Sections 2.6(b) through (ml), and, if such evidence is not furnished, the Property Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment, provided that the foregoing shall not be construed as imposing any obligation or duty on the part of the Property Trustee.
(kj) Nothing contained in Sections 2.6(b) through (ml) shall affect the obligations of the Company to make, or prevent the Company from making, payment of the Contract Payments, except as otherwise provided in Sections 2.6(b) through (ml).
(lk) U.S. The Bank National Associationof New York, or any successor Property Trustee, in its individual capacity shall be entitled to all the rights set forth in this Section with respect to any Senior and Subordinated Debt at the time held by it, to the same extent as any other holder of Senior and Subordinated Debt and nothing in this Agreement shall deprive U.S. The Bank National Associationof New York, or any successor Property Trustee of any of its rights as such holder.
(ml) No right of any present or future holder of any Senior and Subordinated Debt to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of this Agreement, regardless of any knowledge thereof that any such holder may have or be otherwise charged with.
(nm) Nothing in this Section 2.6 shall apply to claims of, or payments to, the Property Trustee under or pursuant to Section 2.7.
(on) With respect to the holders of Senior and Subordinated Debt, (i) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Agreement; (ii) the Property Trustee shall not be liable to any such holders if it shall shall, acting in good faith, mistakenly pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior and Subordinated Debt shall be entitled by virtue of this Section 2.6 or otherwise; (iiiii) no implied covenants or obligations shall be read into this Agreement against the Property Trustee; and (iiiiv) the Property Trustee shall owe no duties, not be deemed to be a fiduciary or otherwise, as to such holders.
(po) Nothing in this Section 2.6 shall apply to any payment or distribution, whether in cash, securities or other property, made to, or paid over or distributed by, any Paying Agent in respect of Contract Payments or otherwise. The Paying Agent shall owe no duty, fiduciary or otherwise, to any holder of Senior and Subordinated Debt and shall not be liable to any holders of Senior and Subordinated Debt if it shall pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior and Subordinated Debt shall otherwise be entitled by virtue of this Section 2.6 or otherwise; and no implied covenants or obligations shall be read into this Agreement against the Paying Agent.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bank of America Corp /De/)
Contract Payments. (a) Subject to Section 2.7, the Company shall pay, in arrears on each Payment Date, the Contract Payments payable in respect of each Stock Purchase Contract to the Property Trustee or upon its orderPayment Account (as defined in the Trust Agreement). The Contract Payments will be payable by wire transfer to the account designated by the Property Trustee by a prior written notice to the Company. The Contract Payments will accrue from and including October 25February 1, 2006 or from and including the most recent Payment Date on which Contract Payments have been paid or duly provided for (subject to deferral as set forth in Section 2.7) to but excluding the next succeeding Payment Date. Contract Payments will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
(b) The Company’s obligations with respect to Contract Payments, if any, will be subordinated and junior in right of payment to the Company’s obligations under any Senior Debt to the extent and in the manner set forth in Sections 2.6(c2.6(b) through (ml).
(c) No payment In the event of (A) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or distribution in respect other similar proceeding relating to the Company, its creditors or its property, (B) any proceeding for the liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, (C) any Contract Payments shall be made assignment by the Company unless full payment for the benefit of amounts then due for principal creditors, or (and premium, if any), sinking funds, and interest on Senior Debt D) any other marshalling of the Company has been made or duly provided for in money or money’s worth in accordance with its terms. No payment or distribution in respect of any Contract Payments shall be made by the Company if, at the time of such payment or immediately after giving effect thereto, there shall have occurred an event of default with respect to any Senior Debt assets of the Company or in any instrument under which the same is outstanding, or an event of default with respect to any Senior Debt of the Company resulting in the acceleration of the maturity thereof, or if any judicial proceedings are pending with respect to any such default.
(d) Upon the occurrence of any event of default referred to in Section 2.6(a) that shall not have been cured or waivedCompany:
(i) all Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to the Property Trustee in respect of Contract Payments;
(ii) any payment or distribution, whether in cash, securities or other property that would otherwise (but for these subordination provisions) be payable or deliverable in respect of Contract Payments shall be paid or delivered directly to the holders of Senior Debt in accordance with the priorities then existing among such holders until all Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full;
(iii) after payment in full of all sums owing with respect to Senior Debt, the Property Trustee, together with the holders of any obligations of the Company ranking on a parity with the Contract Payments, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid Contract Payments and interest thereon and such other obligations before any payment or other distribution, whether in cash, securities or other property, shall be made on account of any capital stock of the Company or any obligations of the Company ranking junior to the Company’s obligations to make Contract Payments under the Stock Purchase Contracts and such other obligations; and
(iv) in the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property, shall be received by the Property Trustee or the Issuer Trust in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred back to the transferor for distributionto, or to the holders of the Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in full. In the event of the failure of the Property Trustee or the Issuer Trust to endorse or assign any such payment, distribution or security, each holder of Senior Debt is hereby irrevocably authorized to endorse or assign the same.
(ed) For purposes of Sections 2.6(c2.6(b) through (pl), the words “cash, securities or other property” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in Sections 2.6(b) through (ml) with respect to such Contract Payments on the Stock Purchase Contracts to the payment of all Senior Debt that may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior Debt is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Debt are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment.
(fe) Any failure by the Company to make any payment on or perform any other obligation under Senior Debt, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of Sections 2.6(b) through (ml) shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default if (i) the Company shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Company that is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or and (B) in the event a judgment that is subject to further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.
(gf) Subject to the irrevocable payment in full of all Senior Debt, the Property Trustee on behalf of the Issuer Trust shall be subrogated (equally and ratably with the holders of all obligations of the Company that by their express terms are subordinated to Senior Debt of the Company to the same extent as payment of the Contract Payments in respect of the Stock Purchase Contracts is subordinated and that are entitled to like rights of subrogation) to the rights of the holders of Senior Debt to receive payments or distributions of cash, securities or other property of the Company applicable to the Senior Debt until all such Contract Payments owing on the Stock Purchase Contracts shall be paid in full, and as between the Company, its creditors other than holders of such Senior Debt and the Property Trustee, no such payment or distribution made to the holders of Senior Debt by virtue of Sections 2.6(b) through (ml) that otherwise would have been made to the Property Trustee shall be deemed to be a payment by the Company on account of such Senior Debt, it being understood that the provisions of Sections 2.6(b) through (ml) are and are intended solely for the purpose of defining the relative rights of the Property Trustee, on the one hand, and the holders of Senior Debt, on the other hand.
(hg) Nothing contained in Sections 2.6(b) through (ml) or elsewhere in this Agreement is intended to or shall impair, as among the Company, its creditors other than the holders of Senior Debt and the Property Trustee, the obligation of the Company, which is absolute and unconditional, to pay to the Property Trustee such Contract Payments on the Stock Purchase Contracts as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Property Trustee and creditors of the Company other than the holders of Senior Debt, nor shall anything herein or therein prevent the Property Trustee from exercising all remedies otherwise permitted by applicable law upon default under this Agreement, subject to the rights, if any, under Sections 2.6(b) through (ml), of the holders of Senior Debt in respect of cash, securities or other property of the Company received upon the exercise of any such remedy.
(ih) Upon payment or distribution of assets of the Company referred to in Sections 2.6(b) through (ml), the Property Trustee shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, conservator, assignee for the benefit of creditors, liquidating trustee or other Person making any payment or distribution, delivered to the Property Trustee, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to Sections 2.6(b) through (ml); provided that the foregoing shall not be construed as creating any duty on the part of the Property Trustee.
(ji) The Property Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior Debt or a trustee or representative on behalf of any such holder or holders. In the event that the Property Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payment or distribution pursuant to Section 2.6(b) through (ml), the Property Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Property Trustee as to the amount of Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under Sections 2.6(b) through (ml), and, if such evidence is not furnished, the Property Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment, provided that the foregoing shall not be construed as imposing any obligation or duty on the part of the Property Trustee.
(kj) Nothing contained in Sections 2.6(b) through (ml) shall affect the obligations of the Company to make, or prevent the Company from making, payment of the Contract Payments, except as otherwise provided in Sections 2.6(b) through (ml).
(lk) U.S. Bank National Association, or any successor Property Trustee, in its individual capacity shall be entitled to all the rights set forth in this Section with respect to any Senior Debt at the time held by it, to the same extent as any other holder of Senior Debt and nothing in this Agreement shall deprive U.S. Bank National Association, or any successor Property Trustee of any of its rights as such holder.
(ml) No right of any present or future holder of any Senior Debt to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of this Agreement, regardless of any knowledge thereof that any such holder may have or be otherwise charged with.
(nm) Nothing in this Section 2.6 shall apply to claims of, or payments to, the Property Trustee under or pursuant to Section 2.72.6.
(on) With respect to the holders of Senior Debt, (i) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Agreement; (ii) the Property Trustee shall not be liable to any such holders if it shall shall, acting in good faith, mistakenly pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior Debt shall be entitled by virtue of this Section 2.6 or otherwise; (iiiii) no implied covenants or obligations shall be read into this Agreement against the Property Trustee; and (iiiiv) the Property Trustee shall owe no duties, not be deemed to be a fiduciary or otherwise, as to such holders.
(po) Nothing in this Section 2.6 shall apply to any payment or distribution, whether in cash, securities or other property, made to, or paid over or distributed by, any Paying Agent in respect of Contract Payments or otherwise. The Paying Agent shall owe no duty, fiduciary or otherwise, to any holder of Senior Debt and shall not be liable to any holders of Senior Debt if it shall pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior Debt shall otherwise be entitled by virtue of this Section 2.6 or otherwise; and no implied covenants or obligations shall be read into this Agreement against the Paying Agent.
Appears in 1 contract
Samples: Stock Purchase Contract Agreement (Wachovia Corp New)
Contract Payments. (a) Subject to Section 2.7, the Company shall pay, in arrears on each Payment Date, the Contract Payments payable in respect of each Stock Purchase Contract to the Property Trustee or upon its order. The Contract Payments will be payable by wire transfer to the account designated Payment Account established under the Trust Agreement by The Bank of New York, as Paying Agent, and the Property Trustee by a prior written notice to the Companyso directs. The Contract Payments will accrue from and including October 25June 19, 2006 2007 or from and including the most recent Payment Date on which Contract Payments have been paid or duly provided for (subject to deferral as set forth in Section 2.7) to but excluding the next succeeding Payment Date. Contract Payments will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
(b) The Company’s obligations with respect to Contract Payments, if any, will be subordinated and junior in right of payment to the Company’s obligations under any Senior Debt to the extent and in the manner set forth in Sections 2.6(c) through (m).
(c) No payment or distribution in respect of any Contract Payments shall be made by the Company unless full payment of amounts then due for principal (and premium, if any), sinking funds, and interest on Senior Debt of the Company has been made or duly provided for in money or money’s worth in accordance with its terms. No payment or distribution in respect of any Contract Payments shall be made by the Company if, at the time of such payment or immediately after giving effect thereto, there shall have occurred an event of default with respect to any Senior Debt of the Company or in any instrument under which the same is outstanding, or an event of default with respect to any Senior Debt of the Company resulting in the acceleration of the maturity thereof, or if any judicial proceedings are pending with respect to any such default.
(d) Upon the occurrence of any event of default referred to in Section 2.6(a2.6(c) that shall not have been cured or waived:
(i) all Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to the Property Trustee in respect of Contract Payments;
(ii) any payment or distribution, whether in cash, securities or other property that would otherwise (but for these subordination provisions) be payable or deliverable in respect of Contract Payments shall be paid or delivered directly to the holders of Senior Debt in accordance with the priorities then existing among such holders until all Senior Debt (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full;; STOCK PURCHASE CONTRACT AGREEMENT
(iii) after payment in full of all sums owing with respect to Senior Debt, the Property Trustee, together with the holders of any obligations of the Company ranking on a parity with the Contract Payments, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid Contract Payments and interest thereon and such other obligations before any payment or other distribution, whether in cash, securities or other property, shall be made on account of any capital stock of the Company or any obligations of the Company ranking junior to the Company’s obligations to make Contract Payments under the Stock Purchase Contracts and such other obligations; and
(iv) in the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property, shall be received by the Property Trustee or the Issuer Trust in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred back to the transferor for distribution, or to the holders of the Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in full. In the event of the failure of the Property Trustee or the Issuer Trust to endorse or assign any such payment, distribution or security, each holder of Senior Debt is hereby irrevocably authorized to endorse or assign the same.
(e) For purposes of Sections 2.6(c) through (p), the words “cash, securities or other property” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in Sections 2.6(b) through (m) with respect to such Contract Payments on the Stock Purchase Contracts to the payment of all Senior Debt that may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior Debt is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Debt are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment.
(f) Any failure by the Company to make any payment on or perform any other obligation under Senior Debt, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of Sections 2.6(b) through (m) shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default if (i) the Company shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Company that is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or (B) in the event a judgment that is subject to further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.
(g) Subject to the irrevocable payment in full of all Senior Debt, the Property Trustee on behalf of the Issuer Trust shall be subrogated (equally and ratably with the holders of all obligations of the Company that by their express terms are subordinated to Senior Debt of the Company to the same extent as payment of the Contract Payments in respect of the Stock Purchase Contracts is subordinated and that are entitled to like rights of subrogation) to the rights of the holders of Senior Debt to receive payments or distributions of cash, securities or other property of the Company applicable to the Senior Debt until all such Contract Payments owing on the Stock Purchase Contracts shall be paid in full, and as between the Company, its creditors other than holders of such XXXXX XXXXXXXX CONTRACT AGREEMENT Senior Debt and the Property Trustee, no such payment or distribution made to the holders of Senior Debt by virtue of Sections 2.6(b) through (m) that otherwise would have been made to the Property Trustee shall be deemed to be a payment by the Company on account of such Senior Debt, it being understood that the provisions of Sections 2.6(b) through (m) are intended solely for the purpose of defining the relative rights of the Property Trustee, on the one hand, and the holders of Senior Debt, on the other hand.
(h) Nothing contained in Sections 2.6(b) through (m) or elsewhere in this Agreement is intended to or shall impair, as among the Company, its creditors other than the holders of Senior Debt and the Property Trustee, the obligation of the Company, which is absolute and unconditional, to pay to the Property Trustee such Contract Payments on the Stock Purchase Contracts as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Property Trustee and creditors of the Company other than the holders of Senior Debt, nor shall anything herein or therein prevent the Property Trustee from exercising all remedies otherwise permitted by applicable law upon default under this Agreement, subject to the rights, if any, under Sections 2.6(b) through (m), of the holders of Senior Debt in respect of cash, securities or other property of the Company received upon the exercise of any such remedy.
(i) Upon payment or distribution of assets of the Company referred to in Sections 2.6(b) through (m), the Property Trustee shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, conservator, assignee for the benefit of creditors, liquidating trustee or other Person making any payment or distribution, delivered to the Property Trustee, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to Sections 2.6(b) through (m); provided that the foregoing shall not be construed as creating any duty on the part of the Property Trustee.
(j) The Property Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior Debt or a trustee or representative on behalf of any such holder or holders. In the event that the Property Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payment or distribution pursuant to Section 2.6(b) through (m), the Property Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Property Trustee as to the amount of Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under Sections 2.6(b) through (m), and, if such evidence is not furnished, the Property Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment, provided that the foregoing shall not be construed as imposing any obligation or duty on the part of the Property Trustee.
(k) Nothing contained in Sections 2.6(b) through (m) shall affect the obligations of the Company to make, or prevent the Company from making, payment of the Contract Payments, except as otherwise provided in Sections 2.6(b) through (m).
(l) U.S. Bank National AssociationManufacturers and Traders Trust Company, or any successor Property Trustee, in its individual capacity shall be entitled to all the rights set forth in this Section with respect to any Senior Debt at the time held by it, to the same extent as any other holder of Senior Debt and nothing in this Agreement shall deprive U.S. Bank National AssociationManufacturers and Traders Trust Company, or any successor Property Trustee of any of its rights as such holder.. STOCK PURCHASE CONTRACT AGREEMENT
(m) No right of any present or future holder of any Senior Debt to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of this Agreement, regardless of any knowledge thereof that any such holder may have or be otherwise charged with.
(n) Nothing in this Section 2.6 shall apply to claims of, or payments to, the Property Trustee under or pursuant to Section 2.7.
(o) With respect to the holders of Senior Debt, (i) the Property Trustee shall not be liable to any such holders if it shall pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property received by it to which any holders of Senior Debt shall be entitled by virtue of this Section 2.6 or otherwise; (ii) no implied covenants or obligations shall be read into this Agreement against the Property Trustee; and (iii) the Property Trustee shall owe no duties, fiduciary or otherwise, to such holders.
(p) Nothing in this Section 2.6 shall apply to any payment or distribution, whether in cash, securities or other property, made to, or paid over or distributed by, any Paying Agent in respect of Contract Payments or otherwise. The Paying Agent shall owe no duty, fiduciary or otherwise, to any holder of Senior Debt and shall not be liable to any holders of Senior Debt if it shall pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior Debt shall otherwise be entitled by virtue of this Section 2.6 or otherwise; and no implied covenants or obligations shall be read into this Agreement against the Paying Agent.
Appears in 1 contract
Contract Payments. (a) Subject to Section 2.7, the Company shall pay, in arrears on each Payment Date, the Contract Payments payable in respect of each Stock Purchase Contract to the Property Trustee or upon its order. The Contract Payments will be payable by wire transfer to the account designated by the Property Trustee by a prior written notice to the Company. The Contract Payments will accrue from and including October 25March 17, 2006 or from and including the most recent Payment Date on which Contract Payments have been paid or duly provided for (subject to deferral as set forth in Section 2.7) to but excluding the next succeeding Payment Date. Contract Payments will be calculated on the basis of a 360-day year consisting of twelve 30-day months.
(b) The Company’s obligations with respect to Contract Payments, if any, will be subordinated and junior in right of payment to the Company’s obligations under any Senior and Subordinated Debt to the extent and in the manner set forth in Sections 2.6(c2.6(b) through (ml).
(c) No payment In the event of (A) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or distribution in other similar proceeding with respect to the Company, its creditors or its property, (B) any proceeding for the voluntary or involuntary liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy proceedings, (C) any Contract Payments shall be made assignment by the Company unless full payment for the benefit of amounts then due for principal creditors, or (and premium, if any), sinking funds, and interest on Senior Debt D) any other marshalling of the Company has been made or duly provided for in money or money’s worth in accordance with its terms. No payment or distribution in respect of any Contract Payments shall be made by the Company if, at the time of such payment or immediately after giving effect thereto, there shall have occurred an event of default with respect to any Senior Debt assets of the Company or in any instrument under which the same is outstanding, or an event of default with respect to any Senior Debt of the Company resulting in the acceleration of the maturity thereof, or if any judicial proceedings are pending with respect to any such default.
(d) Upon the occurrence of any event of default referred to in Section 2.6(a) that shall not have been cured or waivedCompany:
(i) all Senior and Subordinated Debt (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or Amended and Restated Stock Purchase Contract Agreement distribution, whether in cash, securities or other property, shall be made to the Property Trustee in respect of Contract Payments;
(ii) any payment or distribution, whether in cash, securities or other property that would otherwise (but for these subordination provisions) be payable or deliverable in respect of Contract Payments shall be paid or delivered directly to the holders of Senior and Subordinated Debt in accordance with the priorities then existing among such holders until all Senior and Subordinated Debt (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full;
(iii) after payment in full of all sums owing with respect to Senior and Subordinated Debt, the Property Trustee, together with the holders of any obligations of the Company ranking on a parity with the Contract Payments, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid Contract Payments and interest thereon and such other obligations before any payment or other distribution, whether in cash, securities or other property, shall be made on account of any capital stock of the Company or any obligations of the Company ranking junior to the Company’s obligations to make Contract Payments under the Stock Purchase Contracts and such other obligations; and
(iv) in the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property, shall be received by the Property Trustee or the Issuer Trust in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred back to the transferor for distributionto, or to the holders of the Senior and Subordinated Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior and Subordinated Debt remaining unpaid, to the extent necessary to pay all such Senior and Subordinated Debt in full. In the event of the failure of the Property Trustee or the Issuer Trust to endorse or assign any such payment, distribution or security, each holder of Senior and Subordinated Debt is hereby irrevocably authorized to endorse or assign the same.
(ed) For purposes of Sections 2.6(c2.6(b) through (pl), the words “cash, securities or other property” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in Sections 2.6(b) through (ml) with respect to such Contract Payments on the Stock Purchase Contracts to the payment of all Senior and Subordinated Debt that may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior and Subordinated Debt is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior and Subordinated Debt are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment.
(fe) Any failure by the Company to make any payment on or perform any other obligation under Senior and Subordinated Debt, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of Sections 2.6(b) through (ml) shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default if (i) the Company shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Company that is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may Amended and Restated Stock Purchase Contract Agreement seek further appeal or review, or (B) in the event a judgment that is subject to further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.
(gf) Subject to the irrevocable payment in full of all Senior and Subordinated Debt, the Property Trustee on behalf of the Issuer Trust shall be subrogated (equally and ratably with the holders of all obligations of the Company that by their express terms are subordinated to Senior and Subordinated Debt of the Company to the same extent as payment of the Contract Payments in respect of the Stock Purchase Contracts is subordinated and that are entitled to like rights of subrogation) to the rights of the holders of Senior and Subordinated Debt to receive payments or distributions of cash, securities or other property of the Company applicable to the Senior and Subordinated Debt until all such Contract Payments owing on the Stock Purchase Contracts shall be paid in full, and as between the Company, its creditors other than holders of such Senior and Subordinated Debt and the Property Trustee, no such payment or distribution made to the holders of Senior and Subordinated Debt by virtue of Sections 2.6(b) through (ml) that otherwise would have been made to the Property Trustee shall be deemed to be a payment by the Company on account of such Senior and Subordinated Debt, it being understood that the provisions of Sections 2.6(b) through (ml) are intended solely for the purpose of defining the relative rights of the Property Trustee, on the one hand, and the holders of Senior and Subordinated Debt, on the other hand.
(hg) Nothing contained in Sections 2.6(b) through (ml) or elsewhere in this Agreement is intended to or shall impair, as among the Company, its creditors other than the holders of Senior and Subordinated Debt and the Property Trustee, the obligation of the Company, which is absolute and unconditional, to pay to the Property Trustee such Contract Payments on the Stock Purchase Contracts as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Property Trustee and creditors of the Company other than the holders of Senior and Subordinated Debt, nor shall anything herein or therein prevent the Property Trustee from exercising all remedies otherwise permitted by applicable law upon default under this Agreement, subject to the rights, if any, under Sections 2.6(b) through (ml), of the holders of Senior and Subordinated Debt in respect of cash, securities or other property of the Company received upon the exercise of any such remedy.
(ih) Upon payment or distribution of assets of the Company referred to in Sections 2.6(b) through (ml), the Property Trustee shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, conservator, assignee for the benefit of creditors, liquidating trustee or other Person making any payment or distribution, delivered to the Property Trustee, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior and Subordinated Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to Sections 2.6(b) through (ml); provided that the foregoing shall not be construed as creating any duty on the part of the Property Trustee.
(ji) The Property Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior and Subordinated Debt (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior and Subordinated Debt or a trustee or representative on behalf of any such holder or holders. In the event that the Property Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior and Subordinated Debt to participate in any payment or distribution pursuant to Section 2.6(b) through (ml), the Property Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Property Trustee as to the amount of Senior and Subordinated Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under Sections 2.6(b) through (ml), and, if such evidence Amended and Restated Stock Purchase Contract Agreement is not furnished, the Property Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment, provided that the foregoing shall not be construed as imposing any obligation or duty on the part of the Property Trustee.
(kj) Nothing contained in Sections 2.6(b) through (ml) shall affect the obligations of the Company to make, or prevent the Company from making, payment of the Contract Payments, except as otherwise provided in Sections 2.6(b) through (ml).
(lk) U.S. Bank National AssociationWilmington Trust Company, or any successor Property Trustee, in its individual capacity shall be entitled to all the rights set forth in this Section with respect to any Senior and Subordinated Debt at the time held by it, to the same extent as any other holder of Senior and Subordinated Debt and nothing in this Agreement shall deprive U.S. Bank National AssociationWilmington Trust Company, or any successor Property Trustee of any of its rights as such holder.
(ml) No right of any present or future holder of any Senior and Subordinated Debt to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of this Agreement, regardless of any knowledge thereof that any such holder may have or be otherwise charged with.
(nm) Nothing in this Section 2.6 shall apply to claims of, or payments to, the Property Trustee under or pursuant to Section 2.7.
(on) With respect to the holders of Senior and Subordinated Debt, (i) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Agreement; (ii) the Property Trustee shall not be liable to any such holders if it shall shall, acting in good faith, mistakenly pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior and Subordinated Debt shall be entitled by virtue of this Section 2.6 or otherwise; (iiiii) no implied covenants or obligations shall be read into this Agreement against the Property Trustee; and (iiiiv) the Property Trustee shall owe no duties, not be deemed to be a fiduciary or otherwise, as to such holders.
(po) Nothing in this Section 2.6 shall apply to any payment or distribution, whether in cash, securities or other property, made to, or paid over or distributed by, any Paying Agent in respect of Contract Payments or otherwise. The Paying Agent shall owe no duty, fiduciary or otherwise, to any holder of Senior and Subordinated Debt and shall not be liable to any holders of Senior and Subordinated Debt if it shall pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior and Subordinated Debt shall otherwise be entitled by virtue of this Section 2.6 or otherwise; and no implied covenants or obligations shall be read into this Agreement against the Paying Agent.
Appears in 1 contract
Samples: Stock Purchase Contract Agreement (Us Bancorp \De\)
Contract Payments. (a) Subject to Section 2.7, the Company shall pay, in arrears on each Payment Date, or if such day is not a Business Day, the next Business Day, the Contract Payments payable in respect of each Stock Purchase Contract to the Property Trustee or upon its order. The Contract Payments will be payable by wire transfer to the account designated by the Property Trustee by a prior written notice to the Company. The Contract Payments will accrue from and including October 25February 16, 2006 2007 or from and including the most recent Payment Date on which Contract Payments have been paid or duly provided for (subject to deferral as set forth in Section 2.7) to but excluding the next succeeding Payment Date. Contract Payments will be calculated on the basis of a 360-day year consisting for the number of twelve 30-day monthsdays that have actually elapsed.
(b) The Company’s obligations with respect to Contract Payments, if any, will be subordinated and junior in right of payment to the Company’s obligations under any Senior Debt Obligations to the extent and in the manner set forth in Sections 2.6(c2.6(b) through (m)l) and will rank pari passu with the following obligations (i) the Notes, (ii) the Company’s Remarketable Fixed Rate Notes due 2043, (iii) the Company’s Guarantee in respect of the HITS, (iv) the Company’s Guarantee in respect of the HITS issued by BAC Capital Trust XIV, (v) the Company’s Guarantee in respect of the Trust Common Securities issued by the Trust, (vi) the Company’s Guarantee in respect of the Trust Common Securities issued by BAC Capital Trust XIV and (vii) the Stock Purchase Contracts issued by the Company in respect of the HITS issued by BAC Capital Trust XIV.
(c) No payment In the event of (i) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or distribution in other similar proceeding with respect to the Company, its creditors or its property, (ii) any proceeding for the voluntary or involuntary liquidation, dissolution or other winding up of the Company, whether or not involving insolvency or bankruptcy proceedings, (iii) any Contract Payments shall be made assignment by the Company unless full payment for the benefit of amounts then due for principal creditors, or (and premium, if any), sinking funds, and interest on Senior Debt iv) any other marshalling of the Company has been made or duly provided for in money or money’s worth in accordance with its terms. No payment or distribution in respect of any Contract Payments shall be made by the Company if, at the time of such payment or immediately after giving effect thereto, there shall have occurred an event of default with respect to any Senior Debt assets of the Company or in any instrument under which the same is outstanding, or an event of default with respect to any Senior Debt of the Company resulting in the acceleration of the maturity thereof, or if any judicial proceedings are pending with respect to any such default.
(d) Upon the occurrence of any event of default referred to in Section 2.6(a) that shall not have been cured or waivedCompany:
(iA) all Senior Debt Obligations (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other property, shall be made to the Property Trustee in respect of Contract Payments;
(iiB) any payment or distribution, whether in cash, securities or other property that would otherwise (but for these subordination provisions) be payable or deliverable in respect of Contract Payments shall be paid or delivered directly to the holders of Senior Debt Obligations in accordance with the priorities then existing among such holders until all Senior Debt Obligations (including any interest thereon accruing after the commencement of any such proceedings) shall have been paid in full;
(iiiC) after payment in full of all sums owing with respect to Senior DebtObligations, the Property Trustee, together with the holders of any obligations of the Company ranking on a parity with the Contract Payments, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid Contract Payments and interest thereon and such other obligations before any payment or other distribution, whether in cash, securities or other property, shall be made on account of any capital stock of the Company or any obligations of the Company ranking junior to the Company’s obligations to make Contract Payments under the Stock Purchase Contracts and such other obligations; and
(ivD) in the event that, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property, shall be received by the Property Trustee or the Issuer Trust in contravention of any of the terms hereof such payment or distribution or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred back to the transferor for distributionto, or to the holders of the Senior Debt Obligations at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Debt Obligations remaining unpaid, to the extent necessary to pay all such Senior Debt Obligations in full. In the event of the failure of the Property Trustee or the Issuer Trust to endorse or assign any such payment, distribution or security, each holder of Senior Debt Obligations is hereby irrevocably authorized to endorse or assign the same.
(ed) For purposes of Sections 2.6(c2.6(b) through (pl), the words “cash, securities or other property” shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Person provided for by a plan of reorganization or readjustment, the payment of which is subordinated at least to the extent provided in Sections 2.6(b) through (ml) with respect to such Contract Payments on the Stock Purchase Contracts to the payment of all Senior Debt Obligations that may at the time be outstanding; provided that (i) the indebtedness or guarantee of indebtedness, as the case may be, that constitutes Senior Debt Obligations is assumed by the Person, if any, resulting from any such reorganization or readjustment, and (ii) the rights of the holders of the Senior Debt Obligations are not, without the consent of each such holder adversely affected thereby, altered by such reorganization or readjustment.
(fe) Any failure by the Company to make any payment on or perform any other obligation under Senior DebtObligations, other than any indebtedness incurred by the Company or assumed or guaranteed, directly or indirectly, by the Company for money borrowed (or any deferral, renewal, extension or refunding thereof) or any indebtedness or obligation as to which the provisions of Sections 2.6(b) through (ml) shall have been waived by the Company in the instrument or instruments by which the Company incurred, assumed, guaranteed or otherwise created such indebtedness or obligation, shall not be deemed a default or event of default if (i) the Company shall be disputing its obligation to make such payment or perform such obligation and (ii) either (A) no final judgment relating to such dispute shall have been issued against the Company that is in full force and effect and is not subject to further review, including a judgment that has become final by reason of the expiration of the time within which a party may seek further appeal or review, or (B) in the event a judgment that is subject to further review or appeal has been issued, the Company shall in good faith be prosecuting an appeal or other proceeding for review and a stay of execution shall have been obtained pending such appeal or review.
(gf) Subject to the irrevocable payment in full of all Senior DebtObligations, the Property Trustee on behalf of the Issuer Trust shall be subrogated (equally and ratably with the holders of all obligations of the Company that by their express terms are subordinated to Senior Debt Obligations of the Company to the same extent as payment of the Contract Payments in respect of the Stock Purchase Contracts is subordinated and that are entitled to like rights of subrogation) to the rights of the holders of Senior Debt Obligations to receive payments or distributions of cash, securities or other property of the Company applicable to the Senior Debt Obligations until all such Contract Payments owing on the Stock Purchase Contracts shall be paid in full, and as between the Company, its creditors other than holders of such Senior Debt Obligations and the Property Trustee, no such payment or distribution made to the holders of Senior Debt Obligations by virtue of Sections 2.6(b) through (ml) that otherwise would have been made to the Property Trustee shall be deemed to be a payment by the Company on account of such Senior DebtObligations, it being understood that the provisions of Sections 2.6(b) through (ml) are intended solely for the purpose of defining the relative rights of the Property Trustee, on the one hand, and the holders of Senior DebtObligations, on the other hand.
(hg) Nothing contained in Sections 2.6(b) through (ml) or elsewhere in this Agreement is intended to or shall impair, as among the Company, its creditors other than the holders of Senior Debt Obligations and the Property Trustee, the obligation of the Company, which is absolute and unconditional, to pay to the Property Trustee such Contract Payments on the Stock Purchase Contracts as and when the same shall become due and payable in accordance with their terms, or is intended to or shall affect the relative rights of the Property Trustee and creditors of the Company other than the holders of Senior DebtObligations, nor shall anything herein or therein prevent the Property Trustee from exercising all remedies otherwise permitted by applicable law upon default under this Agreement, subject to the rights, if any, under Sections 2.6(b) through (ml), of the holders of Senior Debt Obligations in respect of cash, securities or other property of the Company received upon the exercise of any such remedy.
(ih) Upon payment or distribution of assets of the Company referred to in Sections 2.6(b) through (ml), the Property Trustee shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the Company is pending or upon a certificate of the trustee in bankruptcy, receiver, conservator, assignee for the benefit of creditors, liquidating trustee or other Person making any payment or distribution, delivered to the Property Trustee, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of the Senior Debt Obligations and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to Sections 2.6(b) through (ml); provided that the foregoing shall not be construed as creating any duty on the part of the Property Trustee.
(ji) The Property Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt Obligations (or a trustee or representative on behalf of such holder) to establish that such notice has been given by a holder of Senior Debt Obligations or a trustee or representative on behalf of any such holder or holders. In the event that the Property Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Debt Obligations to participate in any payment or distribution pursuant to Section 2.6(b) through (ml), the Property Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Property Trustee as to the amount of Senior Debt Obligations held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under Sections 2.6(b) through (ml), and, if such evidence is not furnished, the Property Trustee may defer payment to such Person pending judicial determination as to the right of such Person to receive such payment, provided that the foregoing shall not be construed as imposing any obligation or duty on the part of the Property Trustee.
(kj) Nothing contained in Sections 2.6(b) through (ml) shall affect the obligations of the Company to make, or prevent the Company from making, payment of the Contract Payments, except as otherwise provided in Sections 2.6(b) through (ml).
(lk) U.S. The Bank National Associationof New York, or any successor Property Trustee, in its individual capacity shall be entitled to all the rights set forth in this Section with respect to any Senior Debt Obligations at the time held by it, to the same extent as any other holder of Senior Debt Obligations and nothing in this Agreement shall deprive U.S. The Bank National Associationof New York, or any successor Property Trustee of any of its rights as such holder.
(ml) No right of any present or future holder of any Senior Debt Obligations to enforce the subordination herein shall at any time or in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any noncompliance by the Company with the terms, provisions and covenants of this Agreement, regardless of any knowledge thereof that any such holder may have or be otherwise charged with.
(nm) Nothing in this Section 2.6 shall apply to claims of, or payments to, the Property Trustee under or pursuant to Section 2.7.
(on) With respect to the holders of Senior DebtObligations, (i) the duties and obligations of the Property Trustee shall be determined solely by the express provisions of this Agreement; (ii) the Property Trustee shall not be liable to any such holders if it shall shall, acting in good faith, mistakenly pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior Debt Obligations shall be entitled by virtue of this Section 2.6 or otherwise; (iiiii) no implied covenants or obligations shall be read into this Agreement against the Property Trustee; and (iiiiv) the Property Trustee shall owe no duties, not be deemed to be a fiduciary or otherwise, as to such holders.
(po) Nothing in this Section 2.6 shall apply to any payment or distribution, whether in cash, securities or other property, made to, or paid over or distributed by, any Paying Agent in respect of Contract Payments or otherwise. The Paying Agent shall owe no duty, fiduciary or otherwise, to any holder of Senior Debt Obligations and shall not be liable to any holders of Senior Debt Obligations if it shall pay over or distribute to the Holders or to the Company or any other Person cash, securities or other property to which any holders of Senior Debt Obligations shall otherwise be entitled by virtue of this Section 2.6 or otherwise; and no implied covenants or obligations shall be read into this Agreement against the Paying Agent.
Appears in 1 contract
Samples: Stock Purchase Contract Agreement (Bank of America Corp /De/)
