Common use of Insolvency, Liquidation, etc Clause in Contracts

Insolvency, Liquidation, etc. In the event of any insolvency, bankruptcy, receivership, liquidation, reorganization, reformation, readjustment, composition or other similar proceeding relating to the Borrower or its creditors or its property, or any proceeding for the liquidation, dissolution or other winding up of the Borrower, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, or any assignment by the Borrower for the benefit of creditors, or any other marshaling of the assets of the Borrower (each such event or condition is referred to herein as an “Insolvency Event”), then and in each such event (and without giving effect to any reduction or discharge to any of the obligations of any of the Loan Parties as a result of or in connection with the occurrence of any Insolvency Event with respect to any of the Loan Parties, other than a reduction or discharge of the obligations of any of the Loan Parties as a result of actual payment on such obligations): (a) the Termination Date in respect of all Senior Indebtedness must occur before any payment or distribution of any character, whether in cash, securities or other property, shall be made on account of or applied to the Subordinated Indebtedness; and (b) any payment or distribution of any character, whether in cash, securities or other property, which would otherwise (but for this Section 4.2(b)) be payable or deliverable in respect of the Subordinated Indebtedness shall be paid or delivered directly to the holders of Senior Indebtedness (or a representative thereof), until the Termination Date in respect of all Senior Indebtedness has occurred. (c) The Payee agrees not to initiate, prosecute or participate in any claim, action or other proceeding challenging the enforceability, validity, perfection or priority of the Senior Indebtedness or any liens and security interests in property securing the Senior Indebtedness. The Payee also irrevocably authorizes and empowers the administrative agents under the Credit Agreements, in the name of the Payee, to demand, sue for, collect and receive any and all amounts owing under this Note to the same extent as provided herein; provided that the Payee has not done so on its own behalf within 15 days following the delivery to the Payee of a written request of the administrative agents under the Credit Agreements. The Payee agrees to execute, verify, deliver and file any proofs of claim in respect of this Note requested by the administrative agents under the Credit Agreements in connection with any such proceeding and hereby irrevocably authorizes, empowers and appoints the administrative agents under the Credit Agreements as its agent and attorney-in-fact to (i) execute, verify, deliver and file such proofs of claim upon the failure of the Payee promptly to do so prior to 15 days before the expiration of the time to file any such proof of claim and (ii) vote such claim in any such proceeding upon the failure of the Payee to do so prior to 10 days before the expiration of the time to vote any such claim; provided the administrative agents shall have no obligation to execute, verify, deliver, file and/or vote any such proof of claim. In the event that an administrative agent votes any claim in accordance with the authority granted hereby, the Payee shall not be entitled to change or withdraw such vote. (d) The Senior Indebtedness shall continue to be treated as Senior Indebtedness and the provisions of this Note shall continue to govern the relative rights and priorities of the lenders under the Credit Agreements and the Payee even if all or part of the Senior Indebtedness or the security interests securing the Senior Indebtedness are subordinated, set aside, avoided, invalidated or disallowed in connection with any such proceeding, and this Note shall be reinstated if at any time any payment of any of the Senior Indebtedness is rescinded or must otherwise be returned by any holder of Senior Indebtedness or any representative of such holder.

Insolvency, Liquidation, etc. In the event of any insolvency, bankruptcy, receivership, liquidation, reorganization, reformation, readjustment, composition or other similar proceeding relating to the Borrower or its creditors or its property, or any proceeding for the liquidation, dissolution or other winding up of the BorrowerCompany, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, or any assignment by the Borrower Company for the benefit of creditors, or any other marshaling marshalling of the assets of the Borrower (each such event or condition is referred to herein as an “Insolvency Event”)Company, then and in each any such event (and without giving effect to any reduction or discharge to any of the obligations of any of the Loan Parties as a result of or in connection with the occurrence of any Insolvency Event with respect to any of the Loan Parties, other than a reduction or discharge of the obligations of any of the Loan Parties as a result of actual payment on such obligations):event: (ai) the Termination Date in respect of all Senior Indebtedness must occur (including, without limitation, interest accrued thereon after the commencement of any such proceedings, whether or not allowed in such proceedings) shall first be paid in full, in cash, before any payment or distribution of any character, whether in cash, securities or other property, shall be made on account of or applied to the Subordinated Indebtedness; and; (bii) any payment or distribution of any character, whether in cash, securities or other property, which would otherwise (but for this Section 4.2(b9(a)(ii)) be payable or Credit Agreement deliverable in respect of the Subordinated Indebtedness shall be paid or delivered directly to the Senior Administrative Agent on behalf of the holders of Senior Indebtedness (or a representative thereof)Indebtedness, until the Termination Date in respect of all Senior Indebtedness has occurred.shall have been paid in full, after giving effect to any concurrent payment or distribution, or provision thereof, to the holders of Senior Indebtedness; and (ciii) The Payee agrees not to initiate, prosecute or participate in any claim, action or other proceeding challenging the enforceability, validity, perfection or priority of the Senior Indebtedness or any liens and security interests in property securing the Senior Indebtedness. The Payee also Lender irrevocably authorizes and empowers the administrative agents under the Credit AgreementsSenior Administrative Agent, in the name on behalf of the Payeeeach holder of Senior Indebtedness (and each of their successors and assigns), to demand, sue forxxx, collect and receive any all such payments and distributions and to receipt therefor, and to file and prove all amounts owing under this Note to such claims and take all such other action in the same extent as provided herein; provided that the Payee has not done so on its own behalf within 15 days following the delivery to the Payee name of a written request all holders of the administrative agents under Subordinated Indebtedness or otherwise, as the Credit Agreements. The Payee agrees to executeSenior Administrative Agent, verify, deliver and file any proofs of claim in respect of this Note requested by the administrative agents under the Credit Agreements in connection with any such proceeding and hereby irrevocably authorizes, empowers and appoints the administrative agents under the Credit Agreements as its agent and attorney-in-fact to (i) execute, verify, deliver and file such proofs of claim upon the failure on behalf of the Payee promptly to do so prior to 15 days before the expiration holders of the time to file any such proof of claim and (ii) vote such claim in any such proceeding upon the failure of the Payee to do so prior to 10 days before the expiration of the time to vote any such claim; provided the administrative agents shall have no obligation to executeSenior Indebtedness, verify, deliver, file and/or vote any such proof of claim. In the event that an administrative agent votes any claim in accordance with the authority granted hereby, the Payee shall not be entitled to change or withdraw such vote. (d) The Senior Indebtedness shall continue may determine to be treated necessary or appropriate, in each instance as Senior Indebtedness and the provisions of this Note shall continue to govern the relative rights and priorities of the lenders under the Credit Agreements and the Payee even if all or part of the Senior Indebtedness or the security interests securing the Senior Indebtedness are subordinated, more particularly set aside, avoided, invalidated or disallowed forth in connection with any such proceeding, and this Note shall be reinstated if at any time any payment of any of the Senior Indebtedness is rescinded or must otherwise be returned by any holder of Senior Indebtedness or any representative of such holderSection 9(d) hereof.

Insolvency, Liquidation, etc. In the event of any insolvency, bankruptcy, receivership, liquidation, reorganization, reformation, readjustment, composition or other similar proceeding relating to the Borrower or its creditors or its property, or any proceeding for the liquidation, dissolution or other winding up of the Borrower, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, or any assignment by the Borrower for the benefit of creditors, or any other marshaling of the assets of the Borrower (each such event or condition is referred to herein as an “Insolvency Event”), then and in each such event (and without giving effect to any reduction or discharge to any of the obligations of any of the Loan Parties as a result of or in connection with the occurrence of any Insolvency Event with respect to any of the Loan Parties, other than a reduction or discharge of the obligations of any of the Loan Parties as a result of actual payment on such obligations): (a) the Termination Date in respect of all Senior Indebtedness must occur before any payment or distribution of any character, whether in cash, securities or other property, shall be made on account of or applied to the Subordinated Indebtedness; and (b) any payment or distribution of any character, whether in cash, securities or other property, which would otherwise (but for this Section 4.2(b)) be payable or deliverable in respect of the Subordinated Indebtedness shall be paid or delivered directly to the holders of Senior Indebtedness (or a representative thereof), until the Termination Date in respect of all Senior Indebtedness has occurred. (c) The Payee agrees not to initiate, prosecute or participate in any claim, action or other proceeding challenging the enforceability, validity, perfection or priority of the Senior Indebtedness or any liens and security interests in property securing the Senior Indebtedness. The Payee also irrevocably authorizes and empowers the administrative agents under the Credit Agreements, in the name of the Payee, to demand, sue xxx for, collect and receive any and all amounts owing under this Note to the same extent as provided herein; provided that the Payee has not done so on its own behalf within 15 days following the delivery to the Payee of a written request of the administrative agents under the Credit Agreements. The Payee agrees to execute, verify, deliver and file any proofs of claim in respect of this Note requested by the administrative agents under the Credit Agreements in connection with any such proceeding and hereby irrevocably authorizes, empowers and appoints the administrative agents under the Credit Agreements as its agent and attorney-in-fact to (i) execute, verify, deliver and file such proofs of claim upon the failure of the Payee promptly to do so prior to 15 days before the expiration of the time to file any such proof of claim and (ii) vote such claim in any such proceeding upon the failure of the Payee to do so prior to 10 days before the expiration of the time to vote any such claim; provided the administrative agents shall have no obligation to execute, verify, deliver, file and/or vote any such proof of claim. In the event that an administrative agent votes any claim in accordance with the authority granted hereby, the Payee shall not be entitled to change or withdraw such vote. (d) The Senior Indebtedness shall continue to be treated as Senior Indebtedness and the provisions of this Note shall continue to govern the relative rights and priorities of the lenders under the Credit Agreements and the Payee even if all or part of the Senior Indebtedness or the security interests securing the Senior Indebtedness are subordinated, set aside, avoided, invalidated or disallowed in connection with any such proceeding, and this Note shall be reinstated if at any time any payment of any of the Senior Indebtedness is rescinded or must otherwise be returned by any holder of Senior Indebtedness or any representative of such holder.

Insolvency, Liquidation, etc. In the event of any insolvency, bankruptcy, receivership, liquidation, reorganization, reformation, readjustment, composition or other similar proceeding relating to the Borrower or its creditors or its property, or any proceeding for the liquidation, dissolution or other winding up of the Borrower, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, or any assignment by the Borrower for the benefit of creditors, or any other marshaling of the assets of the Borrower (each such event or condition is referred to herein as an “Insolvency Event”), then and in each such event (and without giving effect to any reduction or discharge to any of the obligations of any of the Loan Parties as a result of or in connection with Upon the occurrence of any Insolvency Event with respect to any of the Loan Parties, other than a reduction or discharge of the obligations of any of the Loan Parties as a result of actual payment on such obligations):Liquidation Proceeding: (a) the Termination Date Senior Debt shall first be paid in respect of all Senior Indebtedness must occur full before any payment or distribution of any character, character (whether in cash, securities or other property, ) shall be made on account of or applied with respect to the Subordinated Indebtedness; andDebt or any acquisition of any Subordinated Debt for cash, securities or other property; (b) any payment or distribution of any character, character (whether in cash, securities or other property, ) which would otherwise (but for this Section 4.2(bclause (b)) be payable or deliverable in with respect of to the Subordinated Indebtedness Debt shall be paid or delivered directly to the holders Senior Agent on behalf of the Senior Indebtedness (or a representative thereof)Lenders for application to the Senior Debt, until the Termination Date in respect of all Senior Indebtedness Debt has occurred.been paid in full; and (c) The Payee agrees not to initiate, prosecute or participate in any claim, action or other proceeding challenging the enforceability, validity, perfection or priority of Subordinated Lender shall authorize and empower the Senior Indebtedness Agent, at its election and in its name or any liens and security interests in property securing the Senior Indebtedness. The Payee also irrevocably authorizes and empowers the administrative agents under the Credit Agreements, in the name of the PayeeSubordinated Lender, to demand, sue for, collect and receive any and all amounts owing under this Note to the same extent as provided herein; provided that the Payee has not done so on its own behalf within 15 days following the delivery to the Payee of a written request of the administrative agents under the Credit Agreements. The Payee agrees to execute, verify, deliver execute and file any proofs of claim and other documents to protect completely the interest of the Senior Lenders in respect of this Note requested by the administrative agents under Subordinated Debt if the Credit Agreements in connection with Subordinated Lender has failed to file any such proceeding and hereby irrevocably authorizes, empowers and appoints the administrative agents under the Credit Agreements as its agent and attorney-in-fact to (i) execute, verify, deliver and file such proofs of claim upon the failure of the Payee promptly to do so or other documents within 30 days prior to 15 days before any deadline therefor. Notwithstanding the expiration foregoing provisions of the time to file any such proof of claim and (ii) vote such claim in any such proceeding upon the failure of the Payee to do so prior to 10 days before the expiration of the time to vote any such claim; provided the administrative agents shall have no obligation to execute, verify, deliver, file and/or vote any such proof of claim. In the event that an administrative agent votes any claim in accordance with the authority granted herebythis Section 6, the Payee Borrower may pay and deliver to the Subordinated Lender, and the Subordinated Lender shall not be entitled to change receive and retain, any Reorganization Securities distributed in an Insolvency or withdraw such vote. (d) The Senior Indebtedness shall continue to be treated as Senior Indebtedness and Liquidation Proceeding. Notwithstanding the foregoing provisions of this Note shall continue to govern Section 6 (and any other provisions of this Agreement), any Subordinated Lender Party may convert the relative rights notes issued under, and priorities in accordance with, the Subordinated Debt Agreements into common stock of the lenders under the Credit Agreements and the Payee even if all Borrower prior to, or part of the Senior Indebtedness after commencement of, any Insolvency or the security interests securing the Senior Indebtedness are subordinated, set aside, avoided, invalidated or disallowed in connection with any such proceeding, and this Note shall be reinstated if at any time any payment of any of the Senior Indebtedness is rescinded or must otherwise be returned by any holder of Senior Indebtedness or any representative of such holderLiquidation Proceeding.