Notes Subordinate to Senior Indebtedness. The Company covenants and ---------------------------------------- agrees that anything in this Agreement or the Notes to the contrary notwithstanding, the indebtedness evidenced by the Notes is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided herein, and each holder of Notes, by his acceptance thereof, likewise covenants and agrees to the subordination herein provided and shall be bound by the provisions hereof. Senior Indebtedness shall continue to be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective of any amendment, modification or waiver of any term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness when the same becomes due and payable, whether at maturity or at a date fixed for repayment or by declaration of acceleration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor or representative thereof, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Notes, or in respect of any redemption, retirement, purchase or other acquisition of any of the Notes. In the event of: (a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or 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 assignment by the Company for the benefit of creditors, or (d) any other marshalling of the assets of the Company, all Senior Indebtedness (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 any holder of any of the Notes on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Notes shall be paid or delivered directly to the holders of Senior Indebtedness in accordance with the priorities then existing among such holders until all Senior Indebtedness (including any interest thereof accruing after the commencement of any such proceedings) shall have been paid in full. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the holders of the Notes, together with the holders of any obligations of the Company ranking on a parity with the Notes, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of (and premium, if any) and interest on the Notes and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Notes and such other obligations. In the event that, notwithstanding the foregoing, any payment or distribution of any character, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), or any security shall be received by any holder 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 to, the holders of the Senior Indebtedness at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in full. In the event of the failure of any holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Notes by any act or failure to act on the part of the Company. Nothing contained herein shall impair, as between the Company and the holders of Notes, the obligation of the Company to pay to such holders the principal of and interest on such Notes or prevent the holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a Default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the holders. Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness then outstanding. Upon the payment in full of all Senior Indebtedness, the holders of Notes shall be subrogated to all rights of any holders of Senior Indebtedness to receive any further payments or distributions applicable to the Senior Indebtedness until the indebtedness evidenced by the Notes shall have been paid in full, and such payments or distributions received by such holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness, shall, as between the Company and its creditors other than the holders of Senior Indebtedness, on the one hand, and such holders, on the other hand, be deemed to be a payment by the Company on account of Senior Indebtedness, and not on account of the Notes. The provisions of this Section shall not impair any right, interests, remedies or powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Agreement. The securing of any obligations of the Company, otherwise ranking on a parity with the Notes or ranking junior to the Notes, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the Notes or ranking junior to the Notes.
Appears in 1 contract
Samples: Purchase Agreement (Worldcorp Inc)
Notes Subordinate to Senior Indebtedness. The Company covenants and ---------------------------------------- agrees that agrees, and each holder of a Note, by his or her acceptance thereof, likewise covenants and agrees, that, anything contained in this Agreement or the Notes Indenture to the contrary notwithstanding, the indebtedness evidenced by payment of the principal of, premium, if any, and interest on, each and all of the Notes is are hereby expressly made subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness Indebtedness, to the extent provided herein, and each holder of Notes, by his acceptance thereof, likewise covenants and agrees to the subordination herein provided and shall be bound by the provisions hereof. Senior Indebtedness shall continue to be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective of any amendment, modification or waiver of any term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. hereinafter set forth.
(A) In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness when the same becomes due and payable, whether at maturity or at a date fixed for repayment or by declaration of acceleration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor or representative thereof, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Notes, or in respect of any redemption, retirement, purchase or other acquisition of any of the Notes. In the event of:
(a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition reorganization or other similar proceeding relating proceedings, or any receivership proceedings in connection therewith, relative to the Company, Company or its creditors or its property,
(b) , and in the event of any proceeding proceedings for the voluntary liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company, then all Senior Indebtedness (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full in cash and all obligations to provide financial accommodations under the Credit Agreement have terminated, before any payment, whether on account of principal, interest or otherwise, is made upon the Notes.
(B) In any of the proceedings referred to in paragraph (A) above, any payment or distributiondistribution of any kind or character, whether in cash, securities or other property, shall be made to any holder of any of the Notes on account thereof. Any payment stock or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of obligations which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) may be payable or deliverable in respect of the Notes shall be paid or delivered directly to the holders of Senior Indebtedness for application in accordance with the priorities then existing among such holders payment thereof, unless and until all Senior Indebtedness (including any interest thereof accruing after the commencement of any such proceedings) shall have been paid in full. In full in cash and all obligations to provide financial accommodations under the event of any such proceeding, after Credit Agreement have terminated.
(C) No payment in full of all sums owing with respect to Senior Indebtedness, the holders of the Notes, together with the holders of any obligations of the Company ranking on a parity with the Notes, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing made, directly or indirectly, on account of unpaid principal of (and premium, if any) and interest on the Notes and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Notes and such other obligations. In the event that, notwithstanding the foregoing, any payment or distribution of any character, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), or any security shall be received by any holder 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 to, the holders of the Senior Indebtedness at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in full. In the event of the failure of any holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness is hereby irrevocably authorized to endorse or assign the same. No present or future holder i) upon maturity of any Senior Indebtedness shall be prejudiced in the right to enforce subordination obligation, by lapse of the indebtedness evidenced by the Notes by any act time, acceleration (unless waived), or failure to act on the part of the Company. Nothing contained herein shall impairotherwise, as between the Company unless and the holders of Notes, the obligation of the Company to pay to such holders the until all principal of thereof and interest on such Notes or prevent the holder from exercising thereon and all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a Default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the holders. Senior Indebtedness obligations in respect thereof shall not be deemed to first have been paid in full unless in cash and all obligations to provide financial accommodations under the holders thereof shall Credit Agreement have received cashterminated, securities or other property equal to (ii) upon the amount of such Senior Indebtedness then outstanding. Upon the payment in full of all Senior Indebtedness, the holders of Notes shall be subrogated to all rights happening of any holders default in payment of any principal of, premium, if any, or interest on or any other amounts payable in respect of Senior Indebtedness to receive any further payments when the same becomes due and payable whether at maturity or distributions applicable to the Senior Indebtedness until the indebtedness evidenced by the Notes shall have been paid in full, and such payments or distributions received by such holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness, shall, as between the Company and its creditors other than the holders of Senior Indebtedness, on the one hand, and such holders, on the other hand, be deemed to be at a payment by the Company on account of Senior Indebtedness, and not on account of the Notes. The provisions of this Section shall not impair any right, interests, remedies or powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Agreement. The securing of any obligations of the Company, otherwise ranking on a parity with the Notes or ranking junior to the Notes, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the Notes or ranking junior to the Notes.date fixed
Appears in 1 contract
Samples: Indenture (Aurora Electronics Inc)
Notes Subordinate to Senior Indebtedness. The Company covenants and ---------------------------------------- agrees that anything in this Agreement or the Notes to the contrary notwithstanding, the indebtedness evidenced by the Notes is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided hereinagrees, and each holder of NotesHolder, by his its acceptance thereof, likewise covenants and agrees agrees, for the benefit of the Holders, from time to time, of Senior Indebtedness that, to the subordination herein provided extent and shall be bound in the manner hereinafter set forth in this Article, the Indebtedness represented by the provisions hereof. Senior Indebtedness shall continue to be Senior Indebtedness Notes and entitled to the benefits of these subordination provisions irrespective of any amendment, modification or waiver of any term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. In the event that the Company shall default in the payment of any the principal of (or and premium, if any) or and interest on any each and all of the Notes are hereby expressly made subordinate and subject in right of payment as provided in this Article to the prior payment in full in cash of all Senior Indebtedness when the same becomes due and payableIndebtedness, whether at maturity outstanding on the date of this Indenture or at a date fixed for repayment or by declaration of acceleration or otherwisethereafter 105 94 incurred; provided, thenhowever, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor or representative thereof, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of that the Notes, or in respect of any redemption, retirement, purchase or other acquisition of any of the Notes. In the event of:
(a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or 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 assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company, all Senior Indebtedness (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 any holder of any of the Notes on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment represented thereby and the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Notes shall be paid or delivered directly to the holders of Senior Indebtedness in accordance with the priorities then existing among such holders until all Senior Indebtedness (including any interest thereof accruing after the commencement of any such proceedings) shall have been paid in full. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the holders of the Notes, together with the holders of any obligations of the Company ranking on a parity with the Notes, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of (and premium, if any) and interest on the Notes in all respects shall rank equally with, or prior to, all existing and future unsecured indebtedness (including, without limitation, Indebtedness) of the Company that is subordinated to Senior Indebtedness. SECTION 1402. Payment over by the Company of Proceeds upon Dissolution, etc. Upon any distribution to creditors of the Company in a liquidation or dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, an assignment for the benefit of creditors or any marshaling of the Company's assets and liabilities,
(1) the holders of Senior Indebtedness of the Company shall be entitled to receive payment in full in cash of all Obligations due in respect of such other obligations Senior Indebtedness (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Indebtedness) before the Holders will be entitled to receive any payment with respect to the Notes, and until all Obligations with respect to Senior Indebtedness are paid in full in cash, any distribution to which the Holders would be entitled shall be made to the holders of Senior Indebtedness (except that Holders may receive securities that are subordinated at least to the same extent as the Notes to Senior Indebtedness ("Permitted Junior Securities") and any securities issued in exchange for Senior Indebtedness and Holders may recover payments made from the trust described in Section 1204); and
(2) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or any Holder shall have received any payment or other distributiondistribution of assets of the Company of any kind or character, whether in cash, property or otherwisesecurities, shall be made in respect of principal of (and premium, if any) or interest on account of any capital stock or any obligations of the Company ranking junior to the Notes and such other obligations. In the event that, notwithstanding the foregoing, any before all Senior Indebtedness is paid in full or payment or distribution of any character, whether in cash, securities or other property (other than securities of the Company or any other corporation thereof provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions (such provision with respect to Senior Indebtedness under the indebtedness evidenced New Credit Agreement being satisfactory to each Lender), and if such fact shall at or prior to the time of such payment or distribution, have been made known to the Trustee or such Holder, as the case may be, by the NotesAgent Bank, to the payment of all Senior Indebtedness at the time outstanding then and to any securities issued in respect thereof under any such plan of reorganization or readjustment), or any security shall be received by any holder in contravention of any of the terms hereof, event such payment or distribution (other than a payment or security shall be received distribution in the form of Permitted Junior Securities or out of the trust for the benefit of, and described in Section 1204) shall be paid over or delivered and transferred toforthwith to the trustee in bankruptcy, the holders receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Senior Indebtedness at the time outstanding in accordance with the priorities then existing among such holders Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in full. In the event of the failure of , after giving effect to any holder concurrent payment or distribution to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Notes by any act or failure to act on the part of the Company. Nothing contained herein shall impair, as between the Company and the holders of Notes, the obligation of the Company to pay to such holders the principal of and interest on such Notes or prevent the holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a Default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the holders. Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness then outstanding. Upon the payment in full of all Senior Indebtedness, the holders of Notes shall be subrogated to all rights of any holders of Senior Indebtedness to receive any further payments or distributions applicable to the Senior Indebtedness until the indebtedness evidenced by the Notes shall have been paid in full, and such payments or distributions received by such holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to for the holders of Senior Indebtedness. 106 95 The consolidation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as between the Company and its creditors other than the holders a part of Senior Indebtednesssuch consolidation, on the one handmerger, and such holdersconveyance, on the other handtransfer or lease, be deemed to be a payment by the Company on account of Senior Indebtedness, and not on account of the Notes. The provisions of this Section shall not impair any right, interests, remedies or powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Agreement. The securing of any obligations of the Company, otherwise ranking on a parity comply with the Notes or ranking junior to the Notes, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the Notes or ranking junior to the Notesconditions set forth in Article Eight.
Appears in 1 contract
Notes Subordinate to Senior Indebtedness. The Company covenants and ---------------------------------------- agrees that agrees, and each holder of a Note, by his or her acceptance thereof, likewise covenants and agrees, that, anything contained in this Agreement or the Notes Indenture to the contrary notwithstanding, the indebtedness evidenced by payment of the principal of, premium, if any, and interest on, each and all of the Notes is are hereby expressly made subordinate and junior in right of payment to the prior payment in full of all Senior Indebtedness Indebtedness, to the extent provided hereinhereinafter set forth. Notwithstanding anything herein to the contrary (and without limiting any of the other provisions hereof), and each holder notwithstanding any default or event of default with respect to the subordinated debt evidenced by the Notes, the holders of the Notes will take no action to accelerate or enforce the Notes or any rights or remedies relating thereto against the Company (including without limitation the commencement of, or joining in, any involuntary bankruptcy petition or similar judicial proceeding against the Company) until the expiration of six months after written notice of default is given by his acceptance thereof, likewise covenants and agrees such holders to the subordination herein provided and shall be bound by the provisions hereof. Senior Indebtedness shall continue to be Senior Indebtedness and entitled to the benefits of these subordination provisions irrespective of any amendment, modification or waiver of any term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. Lender.
(A) In the event that the Company shall default in the payment of any principal of (or premium, if any) or interest on any Senior Indebtedness when the same becomes due and payable, whether at maturity or at a date fixed for repayment or by declaration of acceleration or otherwise, then, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor or representative thereof, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of the Notes, or in respect of any redemption, retirement, purchase or other acquisition of any of the Notes. In the event of:
(a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition reorganization or other similar proceeding relating proceedings, or any receivership proceedings in connection therewith, relative to the Company, Company or its creditors or its property,
(b) , and in the event of any proceeding proceedings for the voluntary liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company, then all Senior Indebtedness (including any interest thereon accruing after the commencement of any such proceedings) shall first be paid in full in cash and all obligations to provide financial accommodations under the Credit Agreement have terminated, before any payment, whether on account of principal, interest or otherwise, is made upon the Notes.
(B) In any of the proceedings referred to in paragraph (A) above, any payment or distributiondistribution of any kind or character, whether in cash, securities or other property, shall be made to any holder of any of the Notes on account thereof. Any payment stock or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of obligations which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) may be payable or deliverable in respect of the Notes shall be paid or delivered directly to the holders of Senior Indebtedness for application in accordance with the priorities then existing among such holders payment thereof, unless and until all Senior Indebtedness (including any interest thereof accruing after the commencement of any such proceedings) shall have been paid in full. In full in cash and all obligations to provide financial accommodations under the event of any such proceeding, after Credit Agreement have terminated.
(C) No payment in full of all sums owing with respect to Senior Indebtedness, the holders of the Notes, together with the holders of any obligations of the Company ranking on a parity with the Notes, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing made, directly or indirectly, on account of unpaid principal of (and premium, if any) and interest on the Notes and such other obligations before any payment or other distribution, whether in cash, property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Notes and such other obligations. In the event that, notwithstanding the foregoing, any payment or distribution of any character, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), or any security shall be received by any holder 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 to, the holders of the Senior Indebtedness at the time outstanding in accordance with the priorities then existing among such holders for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in full. In the event of the failure of any holder to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness is hereby irrevocably authorized to endorse or assign the same. No present or future holder i) upon maturity of any Senior Indebtedness shall be prejudiced in the right to enforce subordination obligation, by lapse of the indebtedness evidenced by the Notes by any act time, acceleration (unless waived), or failure to act on the part of the Company. Nothing contained herein shall impairotherwise, as between the Company unless and the holders of Notes, the obligation of the Company to pay to such holders the until all principal of thereof and interest on such Notes or prevent the holder from exercising thereon and all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a Default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the holders. Senior Indebtedness obligations in respect thereof shall not be deemed to first have been paid in full unless in cash and all obligations to provide financial accommodations under the holders thereof shall Credit Agreement have received cashterminated, securities or other property equal to (ii) upon the amount of such Senior Indebtedness then outstanding. Upon the payment in full of all Senior Indebtedness, the holders of Notes shall be subrogated to all rights happening of any holders default in payment of any principal of, premium, if any, or interest on or any other amounts payable in respect of Senior Indebtedness to receive any further payments when the same becomes due and payable whether at maturity or distributions applicable to the Senior Indebtedness until the indebtedness evidenced by the Notes shall have been paid in full, and such payments or distributions received by such holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Indebtedness, shall, as between the Company and its creditors other than the holders of Senior Indebtedness, on the one hand, and such holders, on the other hand, be deemed to be at a payment by the Company on account of Senior Indebtedness, and not on account of the Notes. The provisions of this Section shall not impair any right, interests, remedies or powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Agreement. The securing of any obligations of the Company, otherwise ranking on a parity with the Notes or ranking junior to the Notes, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the Notes or ranking junior to the Notes.date fixed
Appears in 1 contract
Samples: Indenture (Cerplex Group Inc/De)
Notes Subordinate to Senior Indebtedness. The Company covenants and ---------------------------------------- agrees that anything in this Agreement or the Notes to the contrary notwithstanding, the indebtedness evidenced by the Notes is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided hereinagrees, and each holder of NotesHolder, by his its acceptance thereof, likewise covenants and agrees agrees, for the benefit of the Holders, from time to time, of Senior Indebtedness that, to the subordination herein provided extent and shall be bound in the manner hereinafter set forth in this Article, the Indebtedness represented by the provisions hereof. Senior Indebtedness shall continue to be Senior Indebtedness Notes and entitled to the benefits of these subordination provisions irrespective of any amendment, modification or waiver of any term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. In the event that the Company shall default in the payment of any the principal of (or and premium, if any) or and interest on any each and all of the Notes are hereby expressly made subordinate and subject in right of payment as provided in this Article to the prior payment in full in cash of all Senior Indebtedness when the same becomes due and payableIndebtedness, whether at maturity outstanding on the date of this Indenture or at a date fixed for repayment or by declaration of acceleration or otherwisethereafter incurred; provided, thenhowever, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor or representative thereof, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of that the Notes, or in respect of any redemption, retirement, purchase or other acquisition of any of the Notes. In the event of:
(a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or 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 assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company, all Senior Indebtedness (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 any holder of any of the Notes on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment represented thereby and the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Notes shall be paid or delivered directly to the holders of Senior Indebtedness in accordance with the priorities then existing among such holders until all Senior Indebtedness (including any interest thereof accruing after the commencement of any such proceedings) shall have been paid in full. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the holders of the Notes, together with the holders of any obligations of the Company ranking on a parity with the Notes, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of (and premium, if any) and interest on the Notes in all respects shall rank equally with, or prior to, all existing and future unsecured indebtedness (including, without limitation, Indebtedness) of the Company that is subordinated to Senior Indebtedness. SECTION 1402. Payment over by the Company of Proceeds upon Dissolution, etc. Upon any distribution to creditors of the Company in a total or partial liquidation or dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, whether voluntary or involuntary, an assignment for the benefit of creditors or any marshaling of the Company's assets and liabilities,
(1) the holders of Senior Indebtedness of the Company shall be entitled to receive payment in full in cash of all Obligations due in respect of such other obligations Senior 110 Indebtedness (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Indebtedness) before the Holders of Notes will be entitled to receive any payment with respect to the Notes, and until all Obligations with respect to Senior Indebtedness are paid in full in cash or cash equivalents, any distribution to which the Holders of Notes (or the Trustee on their behalf) would be entitled shall be made to the holders of Senior Indebtedness (except that Holders of Notes may receive securities that are subordinated at least to the same extent as the Notes to Senior Indebtedness ("Permitted Junior Securities") and any securities issued in exchange for Senior Indebtedness and Holders of Notes may recover payments made from the trust described in Section 1204); and
(2) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or any Holder of Notes shall have received any payment or other distributiondistribution of assets of the Company of any kind or character, whether in cash, property or otherwisesecurities, shall be made in respect of principal of (and premium, if any) or interest on account of any capital stock or any obligations of the Company ranking junior to the Notes and such other obligations. In the event that, notwithstanding the foregoing, any payment or distribution of any character, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of before all Senior Indebtedness is paid in full or payment thereof provided for, and if such fact shall at or prior to the time outstanding and of such payment or distribution, have been made known to any securities issued in respect thereof the Trustee or such Holder, as the case may be, by the holders of Senior Indebtedness or their respective trustee, agent or other representative under any agreement or indenture pursuant to which any such plan of reorganization or readjustment)Senior Indebtedness may have been issued, or any security shall be received by any holder then and in contravention of any of the terms hereof, such event such payment or distribution (other than a payment or security shall be received distribution in the form of Permitted Junior Securities or out of the trust for the benefit of, and described in Section 1204) shall be paid over or delivered and transferred toforthwith to the trustee in bankruptcy, the holders receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Senior Indebtedness at the time outstanding in accordance with the priorities then existing among such holders Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in full. In the event of the failure of , after giving effect to any holder concurrent payment or distribution to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Notes by any act or failure to act on the part of the Company. Nothing contained herein shall impair, as between the Company and the holders of Notes, the obligation of the Company to pay to such holders the principal of and interest on such Notes or prevent the holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a Default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the holders. Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness then outstanding. Upon the payment in full of all Senior Indebtedness, the holders of Notes shall be subrogated to all rights of any holders of Senior Indebtedness to receive any further payments or distributions applicable to the Senior Indebtedness until the indebtedness evidenced by the Notes shall have been paid in full, and such payments or distributions received by such holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to for the holders of Senior Indebtedness. The consolidation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshaling of assets and liabilities of the Company for the purposes of this Section if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as between the Company and its creditors other than the holders a part of Senior Indebtednesssuch consolidation, on the one handmerger, and such holdersconveyance, on the other handtransfer or lease, be deemed to be a payment by the Company on account of Senior Indebtedness, and not on account of the Notes. The provisions of this Section shall not impair any right, interests, remedies or powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Agreement. The securing of any obligations of the Company, otherwise ranking on a parity comply with the Notes or ranking junior to the Notes, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the Notes or ranking junior to the Notes.conditions set forth in Article Eight. 111
Appears in 1 contract
Samples: Indenture (Afa Products Inc)
Notes Subordinate to Senior Indebtedness. The Company covenants and ---------------------------------------- agrees that anything in this Agreement or the Notes to the contrary notwithstanding, the indebtedness evidenced by the Notes is subordinate and junior in right of payment to all Senior Indebtedness to the extent provided hereinagrees, and each holder of NotesHolder, by his its acceptance thereof, likewise covenants and agrees agrees, for the benefit of the Holders, from time to time, of Senior Indebtedness that, to the subordination herein provided extent and shall be bound in the manner hereinafter set forth in this Article, the Indebtedness represented by the provisions hereof. Senior Indebtedness shall continue to be Senior Indebtedness Notes and entitled to the benefits of these subordination provisions irrespective of any amendment, modification or waiver of any term of the Senior Indebtedness or extension or renewal of the Senior Indebtedness. In the event that the Company shall default in the payment of any the principal of (or and premium, if any) or and interest on any each and all of the Notes are hereby expressly made subordinate and subject in right of payment as provided in this Article to the prior payment in full in cash of all Senior Indebtedness when the same becomes due and payableIndebtedness, whether at maturity outstanding on the Closing Date or at a date fixed for repayment or by declaration of acceleration or otherwisethereafter incurred; provided, thenhowever, upon written notice of such default to the Company by the holders of Senior Indebtedness or any trustee therefor or representative thereof, unless and until such default shall have been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise) shall be made or agreed to be made on account of the principal of or interest on any of that the Notes, or in respect of any redemption, retirement, purchase or other acquisition of any of the Notes. In the event of:
(a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or 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 assignment by the Company for the benefit of creditors, or
(d) any other marshalling of the assets of the Company, all Senior Indebtedness (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 any holder of any of the Notes on account thereof. Any payment or distribution, whether in cash, securities or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment represented thereby and the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness evidenced by the Notes, to the payment of all Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable in respect of the Notes shall be paid or delivered directly to the holders of Senior Indebtedness in accordance with the priorities then existing among such holders until all Senior Indebtedness (including any interest thereof accruing after the commencement of any such proceedings) shall have been paid in full. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Indebtedness, the holders of the Notes, together with the holders of any obligations of the Company ranking on a parity with the Notes, shall be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of (and premium, if any) and interest on the Notes in all respects shall rank equally with, or prior to, all existing and future unsecured indebtedness (including, without limitation, Indebtedness) of the Company that is subordinated to Senior Indebtedness. SECTION 1402. Payment over by the Company of Proceeds upon Dissolution, etc. Upon any distribution to creditors of the Company in a liquidation or dissolution of the Company or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, an assignment for the benefit of creditors or any marshaling of the Company's assets and liabilities,
(1) the holders of Senior Indebtedness of the Company shall be entitled to receive payment in full in cash or Cash Equivalents of all Obligations due in respect of such other obligations Senior Indebtedness (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Indebtedness) before the Holders will be entitled to receive any payment in respect of any Obligations with respect to the Notes, and until all Obligations with respect to Senior Indebtedness are paid in full in cash or Cash Equivalents, any distribution to which the Holders would be entitled shall be made to the holders of Senior Indebtedness (except that Holders may receive securities that are subordinated at least to the same extent as the Notes to Senior Indebtedness ("Permitted Junior Securities") and any securities issued in exchange for Senior Indebtedness and Holders may recover payments made from the trust described in Section 1204); and
(2) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or any Holder shall have received any payment or other distributiondistribution of assets of the Company of any kind or character, whether in cash, property or otherwisesecurities, shall be made in respect of principal of (and premium, if any) or interest on account of any capital stock or any obligations of the Company ranking junior to the Notes and such other obligations. In the event that, notwithstanding the foregoing, any before all Senior Indebtedness is paid in full or payment or distribution of any character, whether in cash, securities or other property (other than securities of the Company or any other corporation thereof provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in these subordination provisions (such provision with respect to Senior Indebtedness under the indebtedness evidenced Amended Credit Agreement being satisfactory to each Lender), and if such fact shall at or prior to the time of such payment or distribution, have been made known to the Trustee or such Holder, as the case may be, by the NotesAgent Bank, to the payment of all Senior Indebtedness at the time outstanding then and to any securities issued in respect thereof under any such plan of reorganization or readjustment), or any security shall be received by any holder in contravention of any of the terms hereof, event such payment or distribution (other than a payment or security shall be received distribution in the form of Permitted Junior Securities or out of the trust for the benefit of, and described in Section 1204) shall be paid over or delivered and transferred toforthwith to the trustee in bankruptcy, the holders receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Senior Indebtedness at the time outstanding in accordance with the priorities then existing among such holders Company for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in full. In the event of the failure of , after giving effect to any holder concurrent payment or distribution to endorse or assign any such payment, distribution or security, each holder of Senior Indebtedness is hereby irrevocably authorized to endorse or assign the same. No present or future holder of any Senior Indebtedness shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Notes by any act or failure to act on the part of the Company. Nothing contained herein shall impair, as between the Company and the holders of Notes, the obligation of the Company to pay to such holders the principal of and interest on such Notes or prevent the holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon a Default or Event of Default hereunder, all subject to the rights of the holders of the Senior Indebtedness to receive cash, securities or other property otherwise payable or deliverable to the holders. Senior Indebtedness shall not be deemed to have been paid in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Indebtedness then outstanding. Upon the payment in full of all Senior Indebtedness, the holders of Notes shall be subrogated to all rights of any holders of Senior Indebtedness to receive any further payments or distributions applicable to the Senior Indebtedness until the indebtedness evidenced by the Notes shall have been paid in full, and such payments or distributions received by such holders, by reason of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to for the holders of Senior Indebtedness. The consolidation of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the conveyance, transfer or lease of its properties and assets substantially as an entirety to another Person upon the terms and conditions set forth in Article Eight shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or marshaling of assets and liabilities of the Company for the purposes of this Section if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance, transfer or lease such properties and assets substantially as an entirety, as the case may be, shall, as between the Company and its creditors other than the holders a part of Senior Indebtednesssuch consolidation, on the one handmerger, and such holdersconveyance, on the other handtransfer or lease, be deemed to be a payment by the Company on account of Senior Indebtedness, and not on account of the Notes. The provisions of this Section shall not impair any right, interests, remedies or powers of any secured creditor of the Company in respect of any security interest the creation of which is not prohibited by the provisions of this Agreement. The securing of any obligations of the Company, otherwise ranking on a parity comply with the Notes or ranking junior to the Notes, shall not be deemed to prevent such obligations from constituting, respectively, obligations ranking on a parity with the Notes or ranking junior to the Notesconditions set forth in Article Eight.
Appears in 1 contract
