Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company: (a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and (b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and (c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.
Appears in 2 contracts
Samples: Indenture (Callon Petroleum Co), Indenture (Callon Petroleum Co)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Upon any payment or distribution of Properties assets or securities of the Company of any kind or character, whether in cash, property or securities, by set-off upon any dissolution or otherwisewinding up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary or in respect of principal of bankruptcy, insolvency, receivership or interest on the Notes before other proceedings, all amounts due or to become due upon all Senior Indebtedness (including any interest accruing subsequent to an event of bankruptcy, whether or not such interest is an allowed claim enforceable against the debtor under the Bankruptcy Code) shall first be paid or provided for in full, then and in cash or cash equivalents, before the Holders of the Securities or the Trustee on behalf of the Holders of the Securities shall be entitled to receive any payment by the Company on account of Senior Subordinated Obligations, or any payment to acquire any of the Securities for cash, property or securities, or any distribution with respect to the Securities of any cash, property or securities.
(b) In the event that, notwithstanding the foregoing provision prohibiting such event payment or distribution, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, shall be received by the Trustee or any Holder at a time when such payment or distribution (other than a is prohibited by Section 10.03(a) and before all obligations in respect of Senior Indebtedness are paid in full, in cash or cash equivalents, such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Senior Indebtedness (PRO RATA to such holders on the basis of the respective amount of Senior Indebtedness held by such holders) or their representatives or to the trustee in bankruptcyor trustees under any other indenture pursuant to which any such Senior Indebtedness may have been issued, receiveras their respective interests appear, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, for application to the extent necessary to pay all payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, in cash or cash equivalents, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Senior Indebtedness. .
(c) The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all of its Properties property and assets to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight hereof 6 shall not be deemed an Insolvency a dissolution, winding up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection 10.03 if such other corporation shall, as a part of such consolidation, merger, sale, conveyance, transfer, lease or other disposition, comply with the conditions provided in Article 6.
Appears in 2 contracts
Samples: Indenture (International Fast Food Corp), Indenture (International Fast Food Corp)
Payment Over of Proceeds Upon Dissolution, Etc. Upon No payment on account of principal of (and premium, if any) or interest on the Notes shall be made, and no Notes shall be purchased, either directly or indirectly, by the Company or any of its subsidiaries, if any default or Event of Default with respect to any Senior Indebtedness, which permits or with the giving of notice or passage of time or both would permit the holders thereof (or a trustee on their behalf) to accelerate the maturity thereof, shall have occurred and be continuing and the Company and the Trustee shall have received written notice thereof from the holders of at least 10% in principal amount of any kind or category of any Senior Indebtedness (or the representative or representatives of such holders) or the Trustee shall have received written notice thereof from the Company. In the event that any Note is declared due and payable before the date specified therein as the fixed date on which the principal thereof is due and payable pursuant to Article Six, or upon any payment or distribution of Properties assets of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities securities, to creditors upon any dissolution or winding up or total or partial liquidation or reorganization of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or other proceedings, all principal of (and premium, if any) and interest due or to become due upon all Senior Indebtedness shall first be paid in full before the noteholders, or the Trustee, shall be entitled to retain any assets (other than Permitted Junior Securitiesshares of stock of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated, at least to the same extent as the Notes, to the payment of all Senior Indebtedness which may at the time be outstanding, provided that the rights of the holders of the Senior Indebtedness are not altered by such reorganization or readjustment) on account so paid or distributed in respect of principal of or interest on the Notes (for principal or on account of the purchase interest); and upon such dissolution or redemption winding up or other acquisition of Notes; and
(b) liquidation or reorganization any direct or indirect payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities (other than shares of stock of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment of which is subordinated, at least to the same extent as the Notes, to the payment of all Senior Indebtedness which may at the time be outstanding, provided that the rights of the holders of the Senior Indebtedness are not altered by such reorganization or distribution in the form of Permitted Junior Securitiesreadjustment), by set-off or otherwise, to which the Holders noteholders or the Trustee, on behalf of the Holders, Trustee would be entitled but entitled, except for the provisions of this Article Section, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee or trustee, agent or other Person person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee by the noteholders or otherwisethe Trustee if received by them or it, directly to the holders of Senior Indebtedness or their representative or representatives or (pro rata to each such holder on the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account basis of the respective amounts of Senior Indebtedness held by such holder) or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Companytheir representatives, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation of the Company with, before any payment or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being distribution is made to the Holders) for noteholders or to the purposes of this SectionTrustee.
Appears in 2 contracts
Samples: Restated Indenture (Bank of America Corp /De/), Indenture (Bank of America Corp /De/)
Payment Over of Proceeds Upon Dissolution, Etc. (a) Upon any distribution to creditors of Properties the Company in a liquidation or dissolution of the Company or payment on behalf 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 with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) 's assets and liabilities, the holders of Senior Indebtedness shall will be entitled to receive payment in full in cash or Cash Equivalents of all obligations due in respect of such Senior Indebtedness (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Indebtedness, or provision must be made for such payment, ) before the Holders of the Notes are will be entitled to receive any direct payment with respect to the Notes, and until all obligations with respect to Senior Indebtedness are paid in full in cash or indirect Cash Equivalents, any distribution to which the Holders of Notes would be entitled shall be made to the holders of Senior Indebtedness (except that Holders of Notes may receive Junior Securities).
(b) In the event that, notwithstanding the foregoing provision prohibiting such payment or distribution, any payment or distribution of any kind or character, whether in cash, property assets or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property property, or securities (other than securities, shall be received by any Holder of Notes at a time when such payment or distribution is prohibited by Section 8.3(a) and before all obligations in the form respect of Permitted Junior Securities)Senior Indebtedness are paid in full in cash or Cash Equivalents, by set-off or otherwisepayment provided for, to which the Holders such payment or the Trustee, on behalf of the Holders, would distribution shall be entitled but received and held for the provisions of this Article benefit of, and shall be paid by the Company over or by any liquidating trustee or agent or other Person making such payment or distributiondelivered to, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their representative or representatives respective representatives, or to the trustee or trustees or agent or agents under any indenture under pursuant to which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according as their respective interests may appear, for application to the aggregate amounts payment of Senior Indebtedness remaining unpaid on account of the until all such Senior Indebtedness held or represented by each, to the extent necessary to make payment has been paid in full of all Senior Indebtedness in cash or Cash Equivalents after giving effect to any prior or concurrent payment payment, distribution, or distribution provision therefor to or for the holders of such Senior Indebtedness; and.
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the liquidation or dissolution of the Company following the saleconveyance or transfer of its property as an entirety, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties as an entirety, to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth provided in Article Eight hereof 5 of the Indenture shall not be deemed an Insolvency a dissolution, winding-up, liquidation, or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection 8.3 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 5 of the Indenture.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Kevco Partners Investment Trust), Securities Purchase Agreement (Kevco Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon In the event of (a) any distribution of Properties of insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or payment on behalf to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company with respect to Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the Notes in the event benefit of creditors or any Insolvency other marshalling of assets or Liquidation Proceeding with respect to liabilities of the Company:, then and in any such event
(a1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or Cash Equivalents of such all amounts due on or in respect of all Senior Indebtedness, or provision must shall be made for such paymentpayment in a manner satisfactory to (x) in the case of Senior Indebtedness in respect of the New Bank Credit Agreement, the holders of two-thirds in principal amount of outstanding Indebtedness under the New Bank Credit Agreement to be so provided for and (y) in the case of other Designated Senior Indebtedness, the holders of two-thirds in principal amount of such other outstanding Designated Senior Indebtedness to be so provided for, before the Holders of the Notes Securities are entitled to receive from any direct or indirect source any payment or distribution of any kind or charactercharacter (including any payment or distribution which may be payable or deliverable by reason of the payment of any other Indebtedness of the Company subordinate in right of payment to the payment of the Securities (such payment or distribution hereinafter being "Junior Subordinated Payments"), whether but excluding (such exclusion to be without prejudice to the holders of Senior Indebtedness in cashtheir capacity as such) any payment or distribution in the form of equity securities or subordinated securities of the Company or any successor obligor with respect to the Indebtedness represented by the Securities provided for by a plan of reorganization or readjustment that, property in the case of any such subordinated securities, are subordinated in right of payment to all Senior Indebtedness that may at the time be outstanding to at least the same extent as the Securities are so subordinated as provided in this Article (such equity securities or subordinated securities (other than hereinafter being "Permitted Junior Securities")) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; andSubordinated Obligations;
(b2) any direct or indirect payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities (other than including a Junior Subordinated Payment, but excluding a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Trustee would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or Cash Equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c3) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note Security shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes Subordinated Obligations before all Senior Indebtedness is paid in full in cash or Cash Equivalents or payment thereof provided for in fulla manner satisfactory to (x) in the case of Senior Indebtedness in respect of the New Bank Credit Agreement, the holders of two-thirds in principal amount of outstanding Indebtedness under the New Bank Credit Agreement so provided for and (y) in the case of other Designated Senior Indebtedness, the holders of two-thirds in principal amount of such other outstanding Designated Senior Indebtedness so provided for, then and in such event such payment or distribution (other than including a Junior Subordinated Payment, but excluding a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of the holders of Senior Indebtedness and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation, amalgamation, continuance or redomestication of ADT Limited or consolidation of the Company any Subsidiary of ADT Limited with, or the merger of the Company ADT Limited or any Subsidiary of ADT Limited into, another Person or the liquidation or dissolution of the Company ADT Limited or any Subsidiary of ADT Limited following the sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or substantially all of its Properties properties and assets to another Person or group of Affiliated Persons pursuant toPerson, and in compliance witheach case, upon the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshalling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionSection if the Person formed by such consolidation, amalgamation, continuance or redomestication of ADT Limited or consolidation of any Subsidiary of ADT Limited or into which ADT Limited or any Subsidiary of ADT Limited is merged or the Person which acquires by conveyance, transfer or lease all or substantially all of such properties and assets, as the case may be, shall, as a part of such consolidation, amalgamation, continuance, redomestication, merger, conveyance, transfer or lease, comply with the conditions set forth in Article Eight.
Appears in 2 contracts
Samples: First Supplemental Indenture (Tyco International LTD /Ber/), Indenture (Tyco International LTD /Ber/)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties In case of the Company pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or payment on behalf of other similar judicial proceeding relative to the Company with respect (each such event, if any, herein sometimes referred to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) as a "Proceeding"), then the holders of Senior Indebtedness Debt shall be entitled to receive payment in full of all amounts due or to become due on such Senior IndebtednessDebt, or provision must shall be made for such paymentpayment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, before the Holders of the Notes Securities are entitled to receive or retain any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities Securities (including any payment or distribution which may be payable or deliverable by reason of the payment of any other than Permitted Junior Debt of the Company (including any series of the Securities) subordinated to the payment of the Securities, such payment or distribution being hereinafter referred to as a "Junior Subordinated Payment"), on account of principal of (or premium, if any) or interest (including any Additional Interest) on the Notes Securities or on account of the purchase or redemption or other acquisition of Notes; and
(b) Securities by the Company or any direct or indirect Subsidiary and to that end the holders of Senior Debt shall be entitled to receive, for application to the payment thereof, any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities securities, including any Junior Subordinated Payment, which may be payable or deliverable in respect of the Securities in any such Proceeding; provided, however, that nothing in this Section shall prevent the satisfaction of any sinking fund payment in accordance with this Indenture or as otherwise specified as contemplated by Section 3.1 for the Securities of any series by delivering and crediting pursuant to Section 12.2 or as otherwise specified as contemplated by Section 3.1 for the Securities of any series of Securities which have been acquired (other than a payment or distribution in the form of Permitted Junior Securities), by set-off upon redemption or otherwise, ) prior to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in Proceeding. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note Security shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by set-off including any Junior Subordinated Payment or otherwiseany sinking fund payment (except as described in the immediately preceding paragraph), in respect of principal of or interest on the Notes before all amounts due or to become due on all Senior Indebtedness Debt are paid in full or payment thereof is paid or provided for in fullcash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all amounts due or to become due on all Senior Debt remaining unpaid, to the extent necessary to pay all amounts due or to become due on all Senior Indebtedness Debt in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessDebt. For purposes of this Article only, the words "any payment or distribution of any kind or character, whether in cash, property or securities" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which securities are subordinated in right of payment to all then outstanding Senior Debt to substantially the same extent as the Securities are so subordinated as provided in this Article. 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 sale, assignment, conveyance, transfer, lease or other disposition sale of all or substantially all of its Properties properties and assets as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof VIII shall not be deemed an Insolvency or Liquidation a Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionSection if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by sale such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger, or sale comply with the conditions set forth in Article VIII.
Appears in 2 contracts
Samples: Junior Subordinated Indenture (Hl&p Capital Trust Iv), Junior Subordinated Indenture (Hl&p Capital Trust I)
Payment Over of Proceeds Upon Dissolution, Etc. Upon In the event of (i) any distribution of Properties insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property, (ii) any proceeding for the liquidation, dissolution or other winding up of the Company voluntarily or payment on behalf involuntarily, whether or not involving insolvency or bankruptcy proceedings, (iii) any assignment by the Company for the benefit of creditors or (iv) any other marshalling of assets of the Company, all amounts due upon all Senior Indebtedness of the Company with respect to (including any interest thereon accruing after the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full commencement of such Senior Indebtednessproceedings) shall first be paid in full, or provision must be made payment thereof provided for such paymentin money in accordance with its terms, before any payment is made by the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) Company on account of the principal of (and premium, if any) or interest on the Notes or on account of Convertible Debentures; and any payment by the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment Company, or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Convertible Debentures or the Trustee would be entitled to receive from the Company, except for the provisions of this Article, shall be paid by set-off the Company or otherwiseby any receiver, trustee in respect bankruptcy, liquidation trustee, agent or other Person making such payment or distribution, or by the Holders of principal the Convertible Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of or interest Senior Indebtedness of the Company (pro rata to such holders on the Notes basis of the respective amounts of Senior Indebtedness held by such holders, as calculated by the Company) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay such Senior Indebtedness (including any interest thereon accruing after the commencement of such proceedings) in full, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Convertible Debentures or to the Trustee. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee before all Senior Indebtedness of the Company is paid or provided for in full, then and in or provision is made for such event payment, such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of and shall be paid over or delivered forthwith to the holders of such Senior Indebtedness or their representative or representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, receiverand their respective interests may appear, liquidating trusteeas calculated by the Company, custodian, assignee, agent or other Person making for application to the payment or distribution of assets all Senior Indebtedness of the Company, as the case may be, remaining unpaid to the extent necessary to pay all such Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Senior Indebtedness. For purposes of this Article only, the words "cash, property or securities" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which are subordinated in right of payment to all Senior Indebtedness which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Convertible Debentures are so subordinated as provided in this Article. 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 sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or its properties and assets substantially all its Properties as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof IX of this Indenture shall not be deemed an Insolvency a dissolution, winding up, liquidation, reorganization, readjustment, composition, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshalling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionSection if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article IX of this Indenture.
Appears in 2 contracts
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties to creditors of the Company or payment on behalf any Subsidiary Guarantor upon any total or partial liquidation, dissolution or winding up of the Company with respect or such Subsidiary Guarantor or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Notes in Company or such Subsidiary Guarantor or its property, whether voluntary or involuntary, an assignment for the event benefit of creditors or any Insolvency or Liquidation Proceeding with respect to marshalling of the Company:'s or such Subsidiary Guarantor's assets and liabilities,
(a1) the holders of Senior Indebtedness shall of the Company or such Subsidiary Guarantor will be entitled to receive payment in full in cash, or at the option of the holders of such Senior Indebtedness, in Temporary Cash Investments, of all Obligations due or provision must be made for to become due in respect of such payment, Senior Indebtedness (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Indebtedness) before the Holders of the Notes are will be entitled to receive any direct payment of any kind or indirect payment character with respect to the Notes; and
(2) until all Obligations with respect to such Senior Indebtedness are paid in full in cash, or at the option of the holders of such Senior Indebtedness, in Temporary Cash Investments, any distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, character to which the Holders or the Trustee, on behalf of the Holders, Notes would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution made to the holders of such Senior Indebtedness; and
Indebtedness (c) in the event that, notwithstanding the foregoing provisions except that Holders of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of may receive Permitted Junior Securities) shall be received Securities and held in payments made from the trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in described under Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionThirteen).
Appears in 2 contracts
Samples: Indenture (Fleming Companies Inc /Ok/), Indenture (Fleming Companies Inc /Ok/)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Upon any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by setto creditors upon any total or partial liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or otherwisemarshaling of assets of the Company or in a bankruptcy, in respect of principal of reorganization, insolvency, receivership or interest on other similar proceeding relating to the Notes before Company or its property, whether voluntary or involuntary, all Obligations due or to become due upon all Senior Indebtedness is shall first be paid in full in cash or Cash Equivalents, or such payments duly provided for in fullto the satisfaction of the holders of Senior Indebtedness, then and in such event such before any payment or distribution (other than a payment of any kind or distribution in character is made on account of any Obligations on the form Securities, or for the acquisition of Permitted Junior Securities) shall be received and held in trust any of the Securities for and shall be paid over cash or delivered forthwith to the trustee in bankruptcyproperty or otherwise. Upon any such dissolution, receiverwinding-up, liquidating trusteeliquidation, custodianreorganization, assigneereceivership or similar proceeding, agent or other Person making any payment or distribution of assets of the CompanyCompany of any kind or character, whether in cash, property or securities, to which the extent necessary Holders of the Securities or the Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders or by the Trustee under this Indenture if received by them, directly to pay all the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interest may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, full in cash or Cash Equivalents after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of Senior Indebtedness. .
(b) To the extent any payment on Senior Indebtedness (whether by or on behalf of the Company, as proceeds of security or enforcement of any right to setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, shall be received by any Holder when such payment or distribution is prohibited by Section 1202(a), such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full in cash or Cash Equivalents, after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Senior Indebtedness.
(d) The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties assets, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight VIII hereof and as long as permitted under the terms of the Senior Indebtedness shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) dissolution, winding-up, liquidation or, reorganization for the purposes of this SectionSection if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, assume the Company's obligations hereunder in accordance with Article VIII hereof.
(e) For purposes of this Article only, the words "cash, property or securities" shall not be deemed to include Permitted Junior Securities of the Company issued in accordance with the requirements of the definition thereof.
Appears in 2 contracts
Samples: Indenture (Building One Services Corp), Indenture (Boss Investment LLC)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in In the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) Proceeding, the holders of Senior Indebtedness shall be entitled to receive payment in full of such all amounts due or to become due on or in respect of all Senior Indebtedness, or provision must shall be made for such paymentpayment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, before the Holders of the Notes Securities or coupons appertaining thereto are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities Securities Payment (other than a payment or distribution Securities Payment in the form of Permitted Junior Securities), by set-off or otherwise, and to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to that end the holders of Senior Indebtedness or their representative or representatives or shall be entitled to receive, for application to the trustee payment thereof, any Securities Payment (other than any Securities Payment in the form of Permitted Junior Securities), which may be payable or trustees under deliverable in any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in Proceeding. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note Security shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution Securities Payment (other than a payment or distribution any Securities Payment in the form of Permitted Junior Securities) shall be received before all Senior Indebtedness is paid in full or payment thereof is provided for in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, and held if the Trustee or such Holder, as the case may be, shall, at or prior to the time of such Securities Payment have actual knowledge of such fact, then and in trust for and each such event, such Securities Payment shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. 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 sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties properties and assets as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation a Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionSection if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article Eight.
Appears in 1 contract
Samples: Indenture (Snyder Oil Corp)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Upon any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by setto creditors upon any liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or otherwisemarshalling of assets of the Company or in a bankruptcy, in respect of principal of reorganization, insolvency, receivership or interest on other similar proceeding relating to the Notes before Company or its property, whether voluntary or involuntary, all Obligations due or to become due upon all Senior Indebtedness is shall first be paid in full in cash or Cash Equivalents, or such payment duly provided for in fullto the satisfaction of the holders of the Senior Indebtedness, then and in such event such before any payment or distribution (other than a payment of any kind or distribution in character is made on account of any Obligations on the form Securities, or for the acquisition of Permitted Junior Securities) shall be received and held in trust any of the Securities for and shall be paid over cash or delivered forthwith to the trustee in bankruptcyproperty or otherwise. Upon any such dissolution, receiverwinding-up, liquidating trusteeliquidation, custodianreorganization, assigneereceivership or similar proceeding, agent or other Person making any payment or distribution of assets of the CompanyCompany of any kind or character, whether in cash, property or securities, to which the extent necessary Holders of the Securities or the Trustee under this Indenture would be entitled (other than any payments of fees and expenses of the Trustee and any indemnity made under Section 7.07), except for the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or 92 -84- distribution, or by the Holders of the Securities or by the Trustee under this Indenture if received by them, directly to pay all the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, full in cash or Cash Equivalents after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of Senior Indebtedness. .
(b) To the extent any payment of Senior Indebtedness (whether by or on behalf of the Company, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, shall be received by any Holder when such payment or distribution is prohibited by Section 10.03(a), such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amount of Senior Indebtedness held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full in cash or Cash Equivalents, after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Senior Indebtedness.
(d) The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the 93 -85- liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties assets, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight hereof Five and as long as permitted under the terms of the Senior Indebtedness shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, assume the Company's obligations hereunder in accordance with Article Five.
Appears in 1 contract
Samples: Indenture (Amcast Radio Sales Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties assets of the Company or payment on behalf of the Company with respect to the Notes any Intercompany Borrower in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) any Insolvency Proceeding, or (b) any assignment for the holders benefit of Senior Indebtedness creditors in connection with, or in lieu of, an Insolvency Proceeding or any marshalling of assets and liabilities of any such Intercompany Borrower in connection with an Insolvency Proceeding (an Intercompany Borrower distributing assets as set forth herein being referred to as a “Distributing Company”), the Administrative Agent shall be entitled to receive payment receive, for the benefit of the holders of the Senior Obligations (each, a “Senior Debt Holder”), Payment in full of such Senior Indebtedness, or provision must be made for such payment, Full under the LC Credit Agreement before the Holders holder of the Notes are any Subordinated Indebtedness is entitled to receive any direct or indirect payment on account of any Subordinated Indebtedness owed to it by the Distributing Company, and, to that end, the Administrative Agent shall be entitled to receive, for application to the payment of the Senior Obligations in accordance with the LC Credit Agreement, any payment or distribution of any kind or character, whether in cash, property or securities (securities, which may be payable or deliverable in respect of the Subordinated Indebtedness owed by the Distributing Company in any such case, proceeding, dissolution, liquidation or other than Permitted Junior Securities) winding up event. If any Event of Default shall have occurred and be continuing, or such an Event of Default would result from or exist after giving effect to a payment with respect to any portion of the Subordinated Indebtedness, so long as any of any Senior Obligations shall remain outstanding, no payment shall be made by any Company on account of principal of or interest on the Notes or on account any portion of the purchase Subordinated Indebtedness. If, while any Subordinated Indebtedness is outstanding and before Payment in Full has occurred in accordance with the terms of the LC Credit Agreement, any Insolvency Proceeding shall occur and be continuing with respect to any Company or redemption or other acquisition of Notes; and
its property: (ba) any direct or indirect payment or distribution of Properties the Administrative Agent hereby is irrevocably authorized and empowered (in the name of the Company of any kind or characterotherwise), whether in cashbut shall have no obligation, property or securities (other than a to demand, sxx for, collect, and receive every payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf respect of the Holders, would be entitled but Subordinated Indebtedness and give acquittance therefor and to file claims and proofs of claim and take such other action (including voting the Subordinated Indebtedness) as it may deem necessary or advisable for the provisions exercise or enforcement of this Article shall be paid by any of the Company rights or by interests of the Administrative Agent (or any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees Debt Holders) under any indenture under which any instruments evidencing any of the Loan Documents; and (b) each Company shall promptly take such Senior action as the Administrative Agent may reasonably request (i) to collect the Subordinated Indebtedness may have been issued, ratably according to for the aggregate amounts remaining unpaid on account of the Senior Indebtedness held Debt Holders and to file appropriate claims or represented by eachproofs of claim in respect of the Subordinated Indebtedness, (ii) to execute and deliver to the extent necessary Administrative Agent such powers of attorney, assignments, and other instruments as it may reasonably request to make payment in full of enable it to enforce any and all Senior Indebtedness after giving effect to any concurrent payment or distribution claims with respect to the holders of such Senior Subordinated Indebtedness; and
, and (ciii) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee to collect and receive any and all any payments or the Holder of any Note shall have received any payment or distribution of Properties of the Company distributions of any kind or character, whether in cash, property or securities, by set-off which may be payable or otherwise, deliverable in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Subordinated 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.
Appears in 1 contract
Samples: Lc Credit Agreement (Weatherford International PLC)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Upon any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by setto creditors upon any liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or otherwisemarshalling of assets of the Company, or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, whether voluntary or involuntary, all Obligations with respect of principal of or interest on the Notes before to all Senior Indebtedness is shall first be paid or provided for in full, then and in such event such cash or Cash Equivalents, before any payment or distribution (other than a payment of any kind or character is made on account of any Obligations on the Notes, or for the acquisition of any of the Notes for cash or property or otherwise; and until all such Obligations with respect to all Senior Indebtedness are paid in full in cash or Cash Equivalents, any distribution in to which the form Holders of Permitted Junior Securities) shall the Notes would be received and held in trust entitled but for and shall the subordination provisions will be paid over or delivered forthwith made to the trustee in holders of Senior Indebtedness as their interests may appear. Upon any such dissolution, winding-up, liquidation, reorganization, bankruptcy, receiverinsolvency, liquidating trusteereceivership or similar proceeding or assignment for the benefit of creditors or marshalling of assets, custodian, assignee, agent or other Person making any payment or distribution of assets of the CompanyCompany of any kind or character, whether in cash, property or securities, to which the extent necessary Holders of the Notes or the Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, or by the Holders of the Notes or by the Trustee under this Indenture if received by them, directly to pay all the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, full in cash or Cash Equivalents after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of Senior Indebtedness. The consolidation .
(b) To the extent any payment of Senior Indebtedness (whether by or on behalf of the Company, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company withof any kind or character, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.whether in
Appears in 1 contract
Samples: Indenture (Tracor Inc /De)
Payment Over of Proceeds Upon Dissolution, Etc. (a) Upon any distribution of Properties to creditors of the Company Guarantors in a liquidation or payment on behalf dissolution of the Company with respect Guarantors or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Notes in Guarantors or their property, an assignment for the event benefit of creditors or any Insolvency or Liquidation Proceeding with respect to marshaling of the Company:
assets and liabilities of the Guarantors, (a1) the holders of Guarantor Senior Indebtedness shall be entitled to receive payment in full in cash or Cash Equivalents of all Obligations due in respect of such Guarantor Senior Indebtedness (including interest after the commencement of any such proceeding, whether or not allowable as a claim in any such proceeding, at the rate specified in the applicable Guarantor Senior Indebtedness, or provision must be made for such payment, ) before the Holders of the Notes are Securities pursuant to the Guarantees shall be entitled to receive any direct payment with respect to the Subordinated Note Obligations under the Securities, and (2) until all Obligations with respect to Guarantor Senior Indebtedness are paid in full in cash or indirect payment or Cash Equivalents, any distribution to which the Holders of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account Securities pursuant to the Guarantees would be entitled shall be made to holders of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; andGuarantor Senior Indebtedness.
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in In the event that, notwithstanding the foregoing provisions of this Sectionprovision prohibiting such payment or distribution, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets or securities of the Company Guarantors of any kind or character, whether in cash, property or securities, shall be received by set-off the Trustee or otherwise, in respect any Holder of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event Securities at a time when such payment or distribution (other than a is prohibited by Section 12.03(a) and before all Obligations in respect of the Guarantor Senior Indebtedness are paid in full in cash, or payment provided for, such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of the Guarantor Senior Indebtedness (PRO RATA to such holders on the basis of the respective amounts of Guarantor Senior Indebtedness held by such holders) or their respective representatives, or to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, or trustees or agent or other Person making agents under any indenture pursuant to which any of Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment or distribution of assets of the Company, to the extent necessary to pay all Guarantor Senior Indebtedness remaining unpaid until all Guarantor Senior Indebtedness has been paid in full, full in cash after giving effect to any prior or concurrent payment payment, distribution or distribution provision therefor to or for the holders of Guarantor Senior Indebtedness; provided that the Trustee shall be entitled to receive from the holders of Guarantor Senior Indebtedness written notice of the amounts owing on the Guarantor Senior Indebtedness. The consolidation of the Company Guarantors with, or the merger of the Company Guarantors with or into, another Person corporation or the liquidation or dissolution of the Company Guarantors following the saleconveyance or transfer of its property as an entirety, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties as an entirety, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight hereof Five shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection 12.03 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Five.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) count of any Obligations on the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior IndebtednessDebentures, or provision must be made for such payment, before the Holders acquisition of any of the Notes are entitled to receive any direct Debentures for cash or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of otherwise. Upon any such dissolution, winding-up, liquidation, reorganization, receivership or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or charactersimilar proceeding, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Debentures or the Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by set-off the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders or by the Trustee under this Indenture if received by them, directly to the holders of Senior Debt (pro rata to such holders on the basis of the respective amounts of Senior Debt held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Debt may have been issued, as their respective interests may appear, for application to the payment of Senior Debt remaining unpaid until all such Senior Debt has been paid in full in cash or Cash Equivalents after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of Senior Debt.
(b) To the extent any payment of Senior Debt (whether by or on behalf of the Company, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in respect bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person, the Senior Debt or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of principal assets of the Company of any kind or interest on the Notes before all Senior Indebtedness is paid character, whether in cash, property or provided for in fullsecurities, then and in such event shall be received by any Holder when such payment or distribution (other than a is prohibited by Section 10.03(a), such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Senior Debt (pro rata to such holders on the basis of the respective amount of Senior Debt held by such holders) or their respective Representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any of such Senior Debt may have been issued, receiveras their respective interests may appear, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, for application to the extent necessary to pay payment 95 -88- of Senior Debt remaining unpaid until all such Senior Indebtedness Debt has been paid in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Senior Indebtedness. Debt.
(d) The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties assets, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight Five hereof and as long as permitted under the terms of the Senior Debt shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, assume the Company's obligations hereunder in accordance with Article Five hereof.
Appears in 1 contract
Samples: Indenture (McMS Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon In the event of (i) any distribution of Properties of insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or payment on behalf to its creditors, as such, or to its assets; or (ii) any liquidation, dissolution or other winding up of the Company with respect to Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or (iii) any assignment for the Notes in the event benefit of creditors or any Insolvency other marshalling of assets or Liquidation Proceeding with respect to liabilities of the Company:, then and in any such event specified in clause (i), clause (ii) or clause (iii) above (each such event, if any, herein sometimes referred to as a "Proceeding"):
(a1) the holders of Senior Indebtedness shall Debt will be entitled to receive payment in full of such Senior Indebtedness, Debt in full in cash or provision must be made for such payment, Cash Equivalents before the Holders of the Notes Noteholders are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, securities or other property or securities with respect to the principal of, premium, (other than Permitted Junior Securities) on account of principal of if any), or interest on or other obligations in respect of the Notes Notes, or on account of the any purchase or redemption or other acquisition of NotesNotes by the Company (all such payments, distributions, purchases and acquisitions herein referred to, individually and collectively, as a "Notes Payment"), and to that end the holders of Senior Debt of the Company shall be entitled to receive, for application to the payment thereof, any Notes Payment which may be payable or deliverable in respect of the Notes in any such Proceeding; and
(b2) until the Senior Debt is paid in full in cash or Cash Equivalents, any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, Notes Payment to which the Holders or the Trustee, on behalf of the Holders, Noteholders would be entitled but for the provisions of this Article shall XI will be paid by the Company or by any liquidating trustee or agent or other Person making made to holders of such payment or distributionSenior Debt as their interests may appear. If a Notes Payment is made to Noteholders that, whether a trustee due to this Article XI should not have been made to them such Noteholders are required to hold it in bankruptcy, a receiver or liquidating trustee or otherwise, directly to trust for the holders of Senior Indebtedness or Debt and pay it over to them as their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness interests may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in appear. In the event that, notwithstanding the foregoing provisions of this SectionSection 11.02, the Trustee or the Holder of any Note shall have received any receives payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all the Senior Indebtedness Debt of the Company is paid in full in cash or provided for in fullCash Equivalents, then and in such event event, such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and Notes Payment shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Debt of the Company remaining unpaid, to the extent necessary to pay all the Senior Indebtedness Debt of the Company in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessDebt of the Company. The consolidation of the Company with, or the merger of the Company into, another Person person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties properties and assets as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, person upon the terms and conditions set forth in Article Eight hereof VI shall not be deemed an Insolvency or Liquidation a Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionSection 11.02 if the person formed by such consolidation or into which the Company is merged or the person which acquires by conveyance or transfer such properties and assets as an entirety, as the case may be, shall, as part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article VI.
Appears in 1 contract
Samples: Indenture (Goss Graphic Systems Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution to creditors of Properties a Guaranteeing Subsidiary in a liquidation or dissolution of such Guaranteeing Subsidiary or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to such Guaranteeing Subsidiary or its property, in an assignment for the benefit of creditors or any marshaling of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the CompanyGuaranteeing Subsidiary's assets and liabilities:
(ai) the holders of the Senior Indebtedness Guarantees shall be entitled to receive payment in full in cash of all obligations due in respect of such Senior Indebtedness, Guarantees (including interest after the commencement of any such proceeding at the rate specified in the Indebtedness to which such Senior Guarantee relates whether or provision must be made for not any such payment, interest is allowed as an enforceable claim against the Guaranteeing Subsidiary in such proceeding) before the Holders holders of the Notes are Note Guarantee shall be entitled to receive any direct payment with respect to the Note Guarantee (except that Holders may receive (A) Permitted Junior Securities and (B) payments and other distributions made from any defeasance trust created pursuant to Section 8.03 or indirect payment or distribution 8.04 of any kind or character, whether the Indenture); and (ii) until all obligations with respect to the Senior Guarantees (as provided in clause (i) above) are paid in full in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account any distribution to which holders of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Note Guarantee would be entitled but for the provisions of this Article Section 4 shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly made to holders entitled to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account benefit of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the Guarantees (except that holders of such Senior Indebtedness; and
the Note Guarantee may receive (cA) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee Permitted Junior Securities and (B) payments and other distributions made from any defeasance trust created pursuant to Section 8.03 or the Holder of any Note shall have received any payment or distribution of Properties 8.04 of the Company of any kind or characterIndenture), whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Sectiontheir interests may appear.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties In case of the Company pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or payment on behalf of the Company with respect other judicial proceeding relating to the Notes in the event of any Insolvency or Liquidation Proceeding with respect Guarantor (each such event, if any, herein sometimes referred to the Company:
(a) as a “Guarantor Proceeding”), then the holders of Senior Guarantor Indebtedness shall be entitled to receive payment in full of Allocable Amounts of such Senior Guarantor Indebtedness, or provision must shall be made for such paymentpayment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Guarantor Indebtedness, before the Holders of the Notes Bonds are entitled to receive or retain any direct payment or indirect distribution under the Guarantee of any kind or character, whether in cash, property or securities, on account of principal of and interest (including any Deferred Interest and Additional Amounts) on and any make-whole or present value payment in respect of the Bonds or on account of the purchase or other acquisition of Bonds by the Guarantor or any Subsidiary of the Guarantor, and to that end holders of Guarantor Indebtedness shall be entitled to receive, for application to the payment of Allocable Amounts, any payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account securities, that may be deliverable in respect of the purchase or redemption or other acquisition of Notes; and
(b) Guarantee in any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in Guarantor Proceeding. In the event that, notwithstanding the foregoing provisions of this SectionSection 9.2(b), the Trustee or the a Holder of any Note Bonds shall have received any payment or distribution under the Guarantee of Properties assets of the Company Guarantor of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Allocable Amounts of all Guarantor Indebtedness are paid in full or payment thereof is paid or provided for in fullcash or cash equivalents or otherwise in a manner satisfactory to the holders of Guarantor Indebtedness, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, Guarantor for application to the extent necessary to pay payment of all Senior Allocable Amounts of all Guarantor Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Guarantor Indebtedness. For purposes of this Section 9.2 only, the words “any payment or distribution under the Guarantee of any kind or character, whether in cash, property or securities” shall not be deemed to include (i) ADSs (or a corresponding number of ordinary shares of the Guarantor) delivered in accordance with the conversion provisions of the Bonds; and (ii) capital stock of the Guarantor as reorganized or readjusted, or securities of the Guarantor or any other corporation provided for by a plan of reorganization or readjustment which securities are subordinated in right of payment to all then outstanding Guarantor Indebtedness to substantially the same extent as the Guarantee is so subordinated as provided in this Section 9.2. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor into, another Person or the liquidation or dissolution of the Company Guarantor following the sale, assignment, conveyance, transfer, lease or other disposition sale of all or substantially all of its Properties properties and assets as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof of the Base Indenture shall not be deemed an Insolvency or Liquidation a Guarantor Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionSection 9.2(b) if the Person formed by such consolidation or into which the Guarantor is merged or the Person which acquires by sale such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger or sale comply with the conditions set forth in Article Eight of the Base Indenture.
Appears in 1 contract
Samples: Second Supplemental Indenture (AngloGold Ashanti Holdings PLC)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive Upon any direct or indirect payment or distribution of cash, securities or other assets, of the Issuer of any kind or character, whether in cash, property or property, securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders creditors upon any dissolution or the Trustee, on behalf winding-up or total or partial liquidation or reorganization of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distributionIssuer, whether a trustee voluntary or involuntary or in bankruptcy, a receiver insolvency, receivership or liquidating trustee other proceedings, all amounts due or otherwise, directly to the holders of become due upon all Senior Indebtedness or their representative or representatives or to the trustee or trustees under shall first be paid in full in cash, before any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid payment is made on account of any Subordinated Obligations or to acquire the Senior Indebtedness held Note for cash or represented by eachproperty. Upon any such dissolution, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment winding-up, liquidation or distribution to the holders of such Senior Indebtedness; and
(c) in the event thatreorganization, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets of the Company Issuer of any kind or character, whether in cash, property or securities, by set-off or otherwiseto which the Holder would be entitled, in respect of principal of or interest on except for the Notes before all Senior Indebtedness is paid or provided for in fullprovisions hereof, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over by the Issuer or delivered forthwith to the by any receiver, trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person person making such payment or distribution distribution, or by the Holder if received by it, directly to the holders of assets Senior Indebtedness (pro rata to such holders on the basis of the Companyrespective amounts of Senior Indebtedness held by such holders) or their respective representatives, or to the extent necessary trustee or trustees under any indenture pursuant to pay all which any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, full in cash after giving effect to any prior or concurrent payment payment, distribution or distribution provision therefor to or for the holders of Senior Indebtedness. The consolidation .
(b) In the event that any payment or distribution of assets of the Company withIssuer of any kind or character, whether in cash, property or securities, shall be received by the Holder when such payment or distribution is prohibited by Section 5.03(a), such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amount of Senior Indebtedness held by such holders) or their respective representatives, or to the merger trustee or trustees under any indenture pursuant to which any of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all such Senior Indebtedness may have been issued, as their respective interests may appear, in the form in which received (except for any necessary endorsements), for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full as a prerequisite in cash, after giving effect to any payments being made concurrent payment, distribution or provision therefor to the Holders) or for the purposes holders of this Sectionsuch Senior Indebtedness.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Upon any payment or distribution of Properties assets of the Company Issuer of any kind or character, whether in cash, property or securities, by setto creditors upon any dissolution or winding-off up or otherwisetotal or partial liquidation or reorganization of the Issuer, whether voluntary or involuntary or in respect bankruptcy, insolvency, receivership or other proceedings, all amounts due or to become due upon all Senior Debt shall first be paid in full, or such payment duly provided for, before any payment is made on account of the principal of or interest on the Notes, or any acquisition of the Notes before for cash or property is made other than conversion of the Notes into Common Shares in accordance with Section 8.1 hereof. Upon any such dissolution, winding-up, liquidation or reorganization, any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, to which the Holders of the Notes would be entitled, except for the provisions hereof, other than conversion of the Notes into Common Shares in accordance with Section 8.1 hereof, shall be paid by the Issuer or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, or by the Holders of the Notes if received by them, directly to the holders of Senior Debt (pro rata to such holders on the basis of the respective amounts of Senior Debt held by such holders) or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Debt may have been issued, as their respective interests may appear, for application to the payment of Senior Debt remaining unpaid until all such Senior Indebtedness is Debt has been paid in full after giving effect to any concurrent payment, distribution or provided provision therefor to or for the holders of Senior Debt.
(b) Notwithstanding the foregoing, in fullthe event that any payment or distribution of assets of the Issuer of any kind or character, then and whether in such event cash, property or securities, other than conversion of the Notes into Common Shares in accordance with Section 8.1 hereof, shall be received by any Holder when such payment or distribution (other than a is prohibited by Section 6.3(a), such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Senior Debt (pro rata to such holders on the basis of the respective amount of Senior Debt held by such holders) or their respective representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any of such Senior Debt may have been issued, receiveras their respective interests may appear, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, for application to the extent necessary to pay payment of Senior Debt remaining unpaid until all such Senior Indebtedness Debt has been paid in full, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Senior Indebtedness. The consolidation Debt.
(c) For purposes of the Company with, or the merger Section 6 of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance withthis Note, the terms and conditions set forth in Article Eight hereof words "CASH, PROPERTY OR SECURITIES" shall not be deemed to include (x) shares of stock of the Issuer as reorganized or readjusted, (y) any payment or distribution of securities of the Issuer or any other Issuer authorized by an Insolvency order or Liquidation Proceeding decree giving effect, and stating in such order or decree that effect is given, to the subordination of the Notes to the Senior Debt, and made by a court of competent jurisdiction in a reorganization proceeding under any applicable bankruptcy, insolvency or other similar law, or (requiring z) securities of the repayment Issuer or any other Issuer provided for by a plan of reorganization or readjustment which are subordinated, to at least the same extent as the Notes, to the payment of all Senior Indebtedness Debt then outstanding; PROVIDED that (i) if a new Issuer results from such reorganization or readjustment, such Issuer assumes the Senior Debt and (ii) the rights of the holders of the Senior Debt are not, without the consent of such holders, altered by such reorganization or readjustment. Notwithstanding anything to the contrary in this Section 6, (i) a court referred to in clause (x) above may give effect, and state that it is giving effect to the subordination of the Notes in an order or decree which authorizes the payment in full as a prerequisite of Senior Debt in assets other than cash or cash equivalents and (ii) any assets which the holders of the Notes are permitted to receive in accordance with the provisions of this Section 6 shall not be subject to any payments being made to claim by or on behalf of the Holders) for the purposes holders of this SectionSenior Debt.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. (a) Upon any distribution to creditors of Properties the Company in a liquidation or dissolution of the Company or payment on behalf 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 with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) 's assets and liabilities, the holders of Senior Indebtedness shall will be entitled to receive payment in full in cash or Cash Equivalents of all obligations due in respect of such Senior Indebtedness (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Indebtedness, or provision must be made for such payment, ) before the Holders of the Notes are will be entitled to receive any direct payment with respect to the Notes, and until all obligations with respect to Senior Indebtedness are paid in full in cash or indirect Cash Equivalents, any distribution to which the Holders of Notes would be entitled shall be made to the holders of Senior Indebtedness (except that Holders of Notes may receive Junior Securities).
(b) In the event that, notwithstanding the foregoing provision prohibiting such payment or distribution, any payment or distribution of any kind or character, whether in cash, property assets or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property property, or securities (other than securities, shall be received by any Holder of Notes at a time when such payment or distribution is prohibited by Section 8.3(a) and before all obligations in the form respect of Permitted Junior Securities)Senior Indebtedness are paid in full in cash or Cash Equivalents, by set-off or otherwisepayment provided for, to which the Holders such payment or the Trustee, on behalf of the Holders, would distribution shall be entitled but received and held for the provisions of this Article benefit of, and shall be paid by the Company over or by any liquidating trustee or agent or other Person making such payment or distributiondelivered to, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their representative or representatives respective representatives, or to the trustee or trustees or agent or agents under any indenture under pursuant to which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according as their respective interests may appear, for application to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties the Company's assets in connection with any dissolution, winding up, liquidation or reorganization of the Company Company, whether voluntary or payment involuntary, in bankruptcy, insolvency or receivership proceedings (each such event, if any, herein sometimes referred to as a "Proceeding"), or upon an assignment for the benefit of creditors or otherwise: (i) all Secured Indebtedness (including without limitation all interest accruing on behalf or after the filing of any petition in bankruptcy relating to the Company with respect to at the Notes relevant contractual rate, whether or not such claim for post-petition interest is allowed in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(asuch proceeding) the holders of Senior Indebtedness shall must be entitled to receive payment paid in full of such Senior Indebtedness, or provision must be made for such payment, in cash before the Holders of the Notes Debentures are entitled to receive any direct payments or indirect distributions of any kind or character (including any payment or distribution which may be payable or deliverable by reason of the payment of any other Debt of the Company (including the Debentures) subordinated to the payment of the Debentures), and (ii) any payment or distribution of the Company's assets of any kind or character, whether in cash, property securities or securities other property, which would otherwise (other than Permitted Junior Securitiesbut for these subordination provisions) on account of principal of be payable or interest on the Notes or on account deliverable in respect of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article Debentures shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, delivered directly to the holders of Senior such Secured Indebtedness (or their representative or representatives trustee) in accordance with the priorities then existing among such holders until all Secured Indebtedness shall have been paid in full in cash before any payment or distribution is made to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account Holders of the Senior Debentures. In the event that notwithstanding the subordination provisions set forth herein, any payment or distribution of assets of any kind or character is made on the Debentures at a time when the respective payment is not permitted to be made as a result of the subordination provisions described above and before all Secured Indebtedness held or represented by each, to the extent necessary to make payment is paid in full in cash, the Trustee or the holders of all Senior Indebtedness after giving effect the Debentures receiving such payment will be required to any concurrent pay over such payment or distribution to the holders of such Senior Secured Indebtedness; and
(c) in . For the event that, notwithstanding the foregoing provisions purposes of this SectionArticle only, the Trustee or the Holder of any Note shall have received words "any payment or distribution of Properties of the Company of any kind or character" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, whether in cash, property or securities, by set-off securities of the Company or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or any other corporation provided for by a plan of reorganization or readjustment which securities are subordinated in full, right of payment to all then and outstanding Secured Indebtedness to substantially the same extent as the Debentures are so subordinated as provided in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtednessthis Article. The consolidation of the Company with, or the merger of the 91 Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition sale of all or substantially all of its Properties properties and assets as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof 8 shall not be deemed an Insolvency or Liquidation a Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionSection if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by sale such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger, or sale comply with the conditions set forth in Article Eight.
Appears in 1 contract
Samples: Indenture (Big Flower Holdings Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Upon any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by set-off to creditors upon any total or partial liquidation, dissolution, winding up, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of the Company or in a bankruptcy, reorganization, insolvency, receivership or other similar proceeding relating to the Company or its property, whether voluntary or involuntary, all Obligations with respect to all Senior Debt shall first be paid in full in cash or Cash Equivalents, before any payment or distribution of any kind or character is made on account of any Obligations on the Notes, or for the acquisition of any of the Notes for cash or property or otherwise; and until all such Obligations with respect to all Senior Debt are paid in full in cash or Cash Equivalents, any distribution to which the Holders of the Notes would be entitled but for the subordination provisions will be made to the holders of Senior Debt as their interests may appear. Upon any such dissolution, winding-up, liquidation, reorganization, receivership or similar proceeding, any payment or distribution of assets of the Company of any kind or character, whether in respect cash, property or securities, to which the Holders of principal the Notes or the Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders or by the Trustee under this Indenture if received by them, directly to the holders of or interest Senior Debt (pro rata to such holders on the Notes before basis of the respective amounts of Senior Debt held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Debt may have been issued, as their respective interests may appear, for application to the payment of Senior Debt remaining unpaid until all such Senior Indebtedness Debt has been paid in full in cash or Cash Equivalents after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of Senior Debt.
(b) To the extent any payment of Senior Debt (whether by or on behalf of the Company, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or provided for other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in fullbankruptcy, then liquidating trustee, agent or other similar Person, the Senior Debt or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in such event cash, property or securities, shall be received by the Trustee or any Holder when such payment or distribution (other than a is prohibited by Section 10.03(a), such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Senior Debt (pro rata to such holders on the basis of the respective amount of Senior Debt held by such holders) or their respective Representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any of such Senior Debt may have been issued, receiveras their respective interests may appear, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, for application to the extent necessary to pay payment of Senior Debt remaining unpaid until all such Senior Indebtedness Debt has been paid in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Senior Indebtedness. Debt.
(d) The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties assets, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight Five hereof and as long as permitted under the terms of the Senior Debt shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, assumed the Company's obligations hereunder in accordance with Article Five hereof.
Appears in 1 contract
Samples: Indenture (Railworks Corp)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties the Company's assets in connection with any dissolution, winding up, liquidation or reorganization of the Company Company, whether voluntary or payment involuntary, in bankruptcy, insolvency or receivership proceedings (each such event, if any, herein sometimes referred to as a "Proceeding"), or upon an assignment for the benefit of creditors or otherwise: (i) all Senior Indebtedness (including without limitation all interest accruing on behalf or after the filing of any petition in bankruptcy relating to the Company with respect to at the Notes relevant contractual rate, whether or not such claim for post-petition interest is allowed in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(asuch Proceeding) the holders of Senior Indebtedness shall must be entitled to receive payment paid in full of such Senior Indebtedness, or provision must be made for such payment, in cash before the Holders of the Notes Securities are entitled to receive any direct payments or indirect distributions of any kind or character (including any payment or distribution which may be payable or deliverable by reason of the payment of any other Debt of the Company (including the Securities) subordinated to the payment of the Securities), and (ii) any payment or distribution of the Company's assets of any kind or character, whether in cash, property securities or securities other property, which would otherwise (other than Permitted Junior Securitiesbut for these subordination provisions) on account of principal of be payable or interest on the Notes or on account deliverable in respect of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article Securities shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, delivered directly to the holders of such Senior Indebtedness (or their representative or representatives or to trustee) in accordance with the trustee or trustees under any indenture under which any instruments evidencing any of priorities then existing among such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of holders until all Senior Indebtedness after giving effect shall have been paid in full in cash before any payment or distribution is made to the Holders of the Securities. In the event that notwithstanding the subordination provisions set forth herein, any concurrent payment or distribution of assets of any kind or character is made on the Securities at a time when the respective payment is not permitted to be made as a result of the subordination provisions described above and before all Senior Indebtedness is paid in full in cash, the Trustee or the holders of the Securities receiving such payment will be required to pay over such payment or distribution to the holders of such Senior Indebtedness; and
(c) in . For the event that, notwithstanding the foregoing provisions purposes of this SectionArticle only, the Trustee or the Holder of any Note shall have received words "any payment or distribution of Properties of the Company of any kind or character" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, whether or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which securities are subordinated in cash, property or securities, by set-off or otherwise, in respect right of principal of or interest on the Notes before payment to all then outstanding Senior Indebtedness is paid or to substantially the same extent as the Securities are so subordinated as provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtednessthis Article. 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 sale, assignment, conveyance, transfer, lease or other disposition sale of all or substantially all of its Properties properties and assets as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof 8 shall not be deemed an Insolvency or Liquidation a Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionSection if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by sale such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger, or sale comply with the conditions set forth in Article Eight.
Appears in 1 contract
Samples: Indenture (Boise Cascade Trust Iii)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties In case of the Company pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or payment on behalf of other judicial proceeding relative to the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) a "Proceeding"), then the holders of Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become due on such Senior Indebtedness, or provision must shall be made for such paymentpayment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, before the Holders of the Notes are entitled to receive or retain any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (including any payment or distribution which may be payable or deliverable by reason of the payment of any other than Permitted indebtedness or obligations of the Company subor- dinated to the payment of the Debentures, such payment or distribution being hereinafter referred to as a "Junior Securities) Subordinated Payment"), on account of principal of of, premium, if any, or interest (including any Additional Interest) on the Notes Debentures or on account of the purchase or redemption or other acquisition of Notes; and
(b) Debentures by the Company or any direct or indirect Subsidiary and to that end the holders of Senior Indebtedness shall be entitled to receive, for application to the payment thereof, any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment securities, including any Junior Subordinated Payment, which may be payable or distribution deliverable in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf respect of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by Debentures in any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in Proceeding. In the event that, notwithstanding the foregoing provisions of this SectionSection 14.2, the Trustee or the Holder of any Note Debenture shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by set-off including any Junior Subordinated Payment, before all amounts due or otherwise, in respect of principal of or interest to become due on the Notes before all Senior Indebtedness are paid in full or payment thereof is paid or provided for in fullcash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, 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, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all amounts due or to become due on all Senior Indebtedness remaining unpaid, to the extent necessary to pay all amounts due or to become due on all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or 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 sale, assignment, conveyance, transfer, lease or other disposition sale of all or substantially all of its Properties properties and assets as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof VIII shall not be deemed an Insolvency or Liquidation a Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionSection 14.2 if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by sale such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger, or sale comply with the conditions set forth in Article VIII.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in In the event of any an Insolvency or Liquidation Proceeding with respect to the Company:
(a1) the holders of all Senior Indebtedness shall be entitled to receive payment in full in cash or cash equivalents of such all Senior Indebtedness, or provision must be made for such payment, Indebtedness before the Holders of the Notes Securities are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities character (other than excluding Permitted Junior SecuritiesSecurities of the Company) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of NotesSenior Subordinated Note Obligations; and
(b2) any direct or indirect payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Trustee would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c3) in the event that, notwithstanding the foregoing provisions of this SectionSection 14.2, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties properties or assets of the Company of any kind or character, whether in cash, property or securities, by set-set off or otherwise, in respect of principal of or interest on the Notes any Senior Subordinated Note Obligations before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation of the Company with, or the merger of the Company with or into, another Person person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or its properties and assets substantially all its Properties as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, person upon the terms and conditions set forth in Article Eight VIII hereof shall not be deemed an Insolvency a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshalling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionArticle if the person formed by such consolidation or the surviving entity of such merger 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 a part of such consolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article VIII hereof to the extent applicable.
Appears in 1 contract
Samples: Indenture (Flores & Rucks Inc /De/)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive Upon any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by setto creditors upon any liquidation, dissolution, winding-off or otherwiseup, to which the Holders or the Trusteereorganization, on behalf of the Holders, would be entitled but assignment for the provisions benefit of this Article shall be paid by creditors or marshaling of assets of the Company or by any liquidating trustee or agent in a bankruptcy, reorganization, insolvency, receivership or other Person making such payment similar proceeding relating to the Company or distributionits property, whether a trustee in bankruptcyvoluntary or involuntary, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives all Obligations due or to the trustee or trustees under any indenture under which any instruments evidencing any of such become due upon all Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment Debt shall first be paid in full of all Senior Indebtedness after giving effect to any concurrent payment in cash or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Cash Equivalents before any payment or distribution of Properties any kind or character (other than a payment in the form of Permitted Junior Securities) is made on account of any Obligations on or with respect to the Notes, or for the acquisition of any of the Notes for cash or property or otherwise. Upon any such dissolution, winding-up, liquidation, reorganization, receivership or similar proceeding, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Notes or the Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by set-off the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders or by the Trustee under this Indenture if received by them, directly to the holders of Senior Debt (pro rata to such holders on the basis of the respective amounts of Senior Debt held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Debt may have been issued, as their respective interests may appear, for application to the payment of Senior Debt remaining unpaid until all such Senior Debt has been paid in full in cash or Cash Equivalents after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of Senior Debt.
(b) To the extent any payment of Senior Debt (whether by or on behalf of the Company, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person, the Senior Debt or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred. It is further agreed that any diminution (whether pursuant to court decree or otherwise, including, without limitation, for any of the reasons described in respect the preceding sentence) of principal the Company’s obligation to make any distribution or payment pursuant to any Senior Debt, except to the extent such diminution occurs by reason of the repayment (which has not been disgorged or interest on returned) of such Senior Debt in cash or Cash Equivalents, shall have no force or effect for purposes of the Notes before all Senior Indebtedness is paid subordination provisions contained in this Article 11, with any turnover of payments as otherwise calculated pursuant to this Article 11 to be made as if no such diminution has occurred.
(c) In the event that, notwithstanding the foregoing, any payment or provided for distribution of assets of the Company of any kind or character, whether in fullcash, then and in such event property or securities, shall be received by the Trustee or any Holder when such payment or distribution (other than a is prohibited by Section 11.03(a), such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Senior Debt (pro rata to such holders on the basis of the respective amount of Senior Debt held by such holders) or their respective Representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any of such Senior Debt may have been issued, receiveras their respective interests may appear, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, for application to the extent necessary to pay payment of Senior Debt remaining unpaid until all such Senior Indebtedness Debt his been paid in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Senior Indebtedness. Debt.
(d) The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties assets, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight hereof 5 and as long as permitted under the terms of the Senior Debt shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, assume the Company’s obligations hereunder in accordance with Article 5.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Upon any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by setto creditors upon any liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or otherwisemarshalling of assets of the Company, or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, whether voluntary or involuntary, all Obligations with respect of principal of or interest on the Notes before to all Senior Indebtedness is shall first be paid or provided for in full, then and in such event such cash or Cash Equivalents, before any payment or distribution (other than a payment of any kind or character is made on account of any Obligations on the Notes, or for the acquisition of any of the Notes for cash or property or otherwise; and until all such Obligations with respect to all Senior Indebtedness are paid in full in cash or Cash Equivalents, any distribution in to which the form Holders of Permitted Junior Securities) shall the Notes would be received and held in trust entitled but for and shall the subordination provisions will be paid over or delivered forthwith made to the trustee in holders of Senior Indebtedness as their interests may appear. Upon any such dissolution, winding-up, liquidation, reorganization, bankruptcy, receiverinsolvency, liquidating trusteereceivership or similar proceeding or assignment for the benefit of creditors or marshalling of assets, custodian, assignee, agent or other Person making any payment or distribution of assets of the CompanyCompany of any kind or character, whether in cash, property or securities, to which the extent necessary Holders of the Notes or the Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, or by the Holders of the Notes or by the Trustee under this Indenture if received by them, directly to pay all the holders of Senior Indebtedness (PRO RATA to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, full in cash or Cash Equivalents after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of Senior Indebtedness. The consolidation .
(b) To the extent any payment of Senior Indebtedness (whether by or on behalf of the Company, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company withof any kind or character, whether in cash, property or securities, shall be received by any Holder when such payment or distribution is prohibited by Section
(a) such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness (PRO RATA to such holders on the basis of the respective amount of Senior Indebtedness held by such holders) or their respective Representatives, or to the merger trustee or trustees under any indenture pursuant to which any of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full as a prerequisite in cash or Cash Equivalents, after giving effect to any payments being made concurrent payment, distribution or provision therefor to the Holders) or for the purposes holders of this Sectionsuch Senior Indebtedness.
Appears in 1 contract
Samples: Indenture (Federal Data Corp /Fa/)
Payment Over of Proceeds Upon Dissolution, Etc. Upon Subject to the Intercreditor Agreement, upon any distribution of Properties assets of the any Company or payment on behalf of the Company with respect to the Notes in the event of (a) any Insolvency insolvency or Liquidation Proceeding with respect bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to any such Company or to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of any such Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any marshalling of assets and liabilities of any such Company (a Company distributing assets as set forth herein being referred to in such capacity as a “Distributing Company”), then and in any such event:
(aA) prior to the holders Discharge of Senior Indebtedness the ABL Obligations (as defined in the Intercreditor Agreement), the representative or representatives, or the trustee or agent, under the ABL Loan Agreement shall be entitled to receive receive, for the benefit of the ABL Creditor Parties as their respective interests may appear, indefeasible payment in full of such all amounts due or to become due (whether or not an Event of Default has occurred under the terms of the ABL Loan Documents or the ABL Debt has been declared due and payable prior to the date on which it would otherwise have become due and payable) on or in respect of any and all Senior Indebtedness, or provision must be made for such payment, Debt before the Holders holder of any Intercompany Indebtedness owed by the Notes are Distributing Company is entitled to receive any direct payment on account of the principal of or indirect interest on such Intercompany Indebtedness, and to that end, the ABL Creditor Parties shall be entitled to receive, as their interests may appear, for application to the payment of the ABL Debt, any payment or distribution of any kind or character, whether in cash, property or securities securities, which may be payable or deliverable in respect of the Intercompany Indebtedness owed by the Distributing Company in any such case, proceeding, dissolution, liquidation or other winding up event; and
(other than Permitted Junior SecuritiesB) prior to the Discharge of the Term Obligations (as defined in the Intercreditor Agreement), the representative or representatives, or the trustee or agent, under the Term Loan Agreement shall be entitled to receive, for the benefit of the Term Creditor Parties as their respective interests may appear, indefeasible payment in full of all amounts due or to become due (whether or not an Event of Default has occurred under the terms of the Term Loan Documents or the Term Debt has been declared due and payable prior to the date on which it would otherwise have become due and payable) on or in respect of any and all Term Debt before the holder of any Intercompany Indebtedness owed by the Distributing Company is entitled to receive any payment on account of the principal of or interest on such Intercompany Indebtedness, and to that end, the Notes or on account Term Creditor Parties shall be entitled to receive, as their interests may appear, for application to the payment of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or characterTerm Debt, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off which may be payable or otherwise, deliverable in respect of principal of or interest on the Notes before all Senior Intercompany Indebtedness is paid or provided for owed by the Distributing Company in fullany such case, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcyproceeding, receiverdissolution, liquidating trustee, custodian, assignee, agent liquidation or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Sectionwinding up event.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) Upon any payment or distribution of assets of Holdings of any kind or character to creditors, whether in cash, property or securities, upon any total or partial liquidation, dissolution, winding-up, reorganization, assignment for the benefit of creditors or marshaling of assets of Holdings or in a bankruptcy, reorganization, insolvency, receivership or other similar proceeding relating to Holdings or its property, whether voluntary or involuntary, all Obligations due or to become due upon all Guarantor Senior Debt of Holdings shall first be paid in full in cash or Cash Equivalents, or such payment duly provided for to the satisfaction of the holders of Guarantor Senior Indebtedness shall be entitled to receive payment in full Debt of such Senior Indebtedness, or provision must be made for such paymentHoldings, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) character is made on account of principal any Guarantee Obligations, or for the acquisition of or interest on any of the Notes for cash or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment otherwise. Upon any such dissolution, winding-up, liquidation, reorganization, receivership or distribution in the form of Permitted Junior Securities)similar proceeding, by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets of the Company Holdings of any kind or character, whether in cash, property or securities, to which the Holders of the Notes would be entitled, except for the provisions hereof, shall be paid by set-off Holdings or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders if received by them, directly to the holders of Guarantor Senior Debt of Holdings (pro rata to such holders on the basis of the respective amounts of Guarantor Senior Debt of Holdings held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Guarantor Senior Debt of Holdings may have been issued, as their respective interests may appear, for application to the payment of Guarantor Senior Debt of Holdings remaining unpaid until all such Guarantor Senior Debt of Holdings has been paid in full in cash or Cash Equivalents after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of Guarantor Senior Debt of Holdings.
(b) To the extent any payment of Guarantor Senior Debt of Holdings (whether by or on behalf of Holdings, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in respect of principal of bankruptcy, liquidating trustee, agent or interest on the Notes before all Senior Indebtedness is paid other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or provided for in fullsimilar law, then if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person, the Guarantor Senior Debt of Holdings or part thereof originally intended to 96 104 be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of Holdings of any kind or character, whether in such event cash, property or securities, shall be received by any Holder when such payment or distribution (other than a is prohibited by this Section 12.03, such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Guarantor Senior Debt of Holdings (pro rata to such holders on the basis of the respective amount of Guarantor Senior Debt of Holdings held by such holders) or their respective Representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any of such Guarantor Senior Debt of Holdings may have been issued, receiveras their respective interests may appear, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, for application to the extent necessary to pay payment of Guarantor Senior Debt of Holdings remaining unpaid until all such Guarantor Senior Indebtedness Debt of Holdings has been paid in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Guarantor Senior Indebtedness. Debt of Holdings.
(d) The consolidation of the Company Holdings with, or the merger of the Company Holdings with or into, another Person or the liquidation or dissolution of the Company Holdings following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties assets, to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth provided in Article Eight Five hereof shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection 12.03 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, assume Holdings' obligations hereunder in accordance with Article Five hereof.
Appears in 1 contract
Samples: Indenture (Del Monte Foods Co)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties the Company's assets in connection with any dissolution, winding up, liquidation or reorganization of the Company Company, whether voluntary or payment involuntary, in bankruptcy, insolvency or receivership proceedings (each such event, if any, herein sometimes referred to as a "Proceeding"), or upon an assignment for the benefit of creditors or otherwise: (i) all Senior Indebtedness (including without limitation all interest accruing on behalf or after the filing of any petition in bankruptcy relating to the Company with respect to at the Notes relevant contractual rate, whether or not such claim for post-petition interest is allowed in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(asuch Proceeding) the holders of Senior Indebtedness shall must be entitled to receive payment paid in full of such Senior Indebtedness, or provision must be made for such payment, in cash before the Holders of the Notes Securities are entitled to receive any direct payments or indirect distributions of any kind or character (including any payment or distribution which may be payable or deliverable by reason of the payment of any other Debt of the Company (including the Securities) subordinated to the payment of the Securities), and (ii) any payment or distribution of the Company's assets of any kind or character, whether in cash, property securities or securities other property, which would otherwise (other than Permitted Junior Securitiesbut for these subordination provisions) on account of principal of be payable or interest on the Notes or on account deliverable in respect of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article Securities shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, delivered directly to the holders of such Senior Indebtedness (or their representative or representatives or to trustee) in accordance with the trustee or trustees under any indenture under which any instruments evidencing any of priorities then existing among such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of holders until all Senior Indebtedness after giving effect shall have been paid in full in cash before any payment or distribution is made to the Holders of the Securities. In the event that notwithstanding the subordination provisions set forth herein, any concurrent payment or distribution of assets of any kind or character is made on the Securities at a time when the respective payment is not permitted to be made as a result of the subordination provisions described above and before all Senior Indebtedness is paid in full in cash, the Trustee or the holders of the Securities receiving such payment will be required to pay over such payment or distribution to the holders of such Senior Indebtedness; and
(c) in . For the event that, notwithstanding the foregoing provisions purposes of this SectionArticle only, the Trustee or the Holder of any Note shall have received words "any payment or distribution of Properties of the Company of any kind or character" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, whether or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which securities are subordinated in cash, property or securities, by set-off or otherwise, in respect right of principal of or interest on the Notes before payment to all then outstanding Senior Indebtedness is paid or to substantially the same extent as the Securities are so subordinated as provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtednessthis Article. 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 sale, assignment, conveyance, transfer, lease or other disposition sale of all or substantially all of its Properties properties and assets as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.in
Appears in 1 contract
Samples: Indenture (Boise Cascade Trust Iii)
Payment Over of Proceeds Upon Dissolution, Etc. Upon In the event of (i) any distribution of Properties insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property, (ii) any proceeding for the liquidation, dissolution or other winding up of the Company voluntarily or payment on behalf involuntarily, whether or not involving insolvency or bankruptcy proceedings, (iii) any assignment by the Company for the benefit of creditors or (iv) any other marshalling of assets of the Company, all amounts due upon all Senior Indebtedness of the Company with respect to (including any interest thereon accruing after the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full commencement of such Senior Indebtednessproceedings) shall first be paid in full, or provision must be made payment thereof provided for such paymentin money in accordance with its terms, before any payment is made by the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) Company on account of the principal of (and premium, if any) or interest on the Notes or on account of Convertible Debentures; and any payment by the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment Company, or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, which the Holders of the Convertible Debentures or the Trustee would be entitled to receive from the Company, except for the provisions of this Article, shall be paid by set-off the Company or otherwiseby any receiver, trustee in respect bankruptcy, liquidation trustee, agent or other Person making such payment or distribution, or by the Holders of principal the Convertible Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of or interest Senior Indebtedness of the Company (pro rata to such holders on the Notes basis of the respective amounts of Senior Indebtedness held by such holders, as calculated by the Company) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay such Senior Indebtedness (including any interest thereon accruing after the commencement of such proceedings) in full, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Convertible Debentures or to the Trustee. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee before all Senior Indebtedness of the Company is paid or provided for in full, then and in or provision is made for such event payment, such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of and shall be paid over or delivered forthwith to the holders of such Senior Indebtedness or their representative or representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, receiveras their respective interests may appear, liquidating trusteeas calculated by the Company, custodian, assignee, agent or other Person making for application to the payment or distribution of assets all Senior Indebtedness of the Company, remaining unpaid to the extent necessary to pay all such Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Senior Indebtedness. For purposes of this Article only, the words "cash, property or securities" shall not be deemed to include shares of Capital Stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which are subordinated in right of payment to all Senior Indebtedness which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Convertible Debentures are so subordinated as provided in this Article. 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 sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or its properties and assets substantially all its Properties as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof IX of this Indenture shall not be deemed an Insolvency a dissolution, winding up, liquidation, reorganization, readjustment, composition, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshalling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionSection if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article IX of this Indenture.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties assets of the Company or payment on behalf of the Company with respect to the Notes any Intercompany Borrower in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) any Insolvency Proceeding, or (b) any assignment for the holders benefit of Senior Indebtedness creditors in connection with, or in lieu of, an Insolvency Proceeding or any marshalling of assets and liabilities of any such Intercompany Borrower in connection with an Insolvency Proceeding (an Intercompany Borrower distributing assets as set forth herein being referred to as a “Distributing Company”), the Administrative Agent shall be entitled to receive payment receive, for the benefit of the holders of the Senior Obligations (each, a “Senior Debt Holder”), Payment in full of such Senior Indebtedness, or provision must be made for such payment, Full under the LC Credit Agreement before the Holders holder of the Notes are any Subordinated Indebtedness is entitled to receive any direct or indirect payment on account of any Subordinated Indebtedness owed to it by the Distributing Company, and, to that end, the Administrative Agent shall be entitled to receive, for application to the payment of the Senior Obligations in accordance with the LC Credit Agreement, any payment or distribution of any kind or character, whether in cash, property or securities (securities, which may be payable or deliverable in respect of the Subordinated Indebtedness owed by the Distributing Company in any such case, proceeding, dissolution, liquidation or other than Permitted Junior Securities) winding up event. If any Event of Default shall have occurred and be continuing, or such an Event of Default would result from or exist after giving effect to a payment with respect to any portion of the Subordinated Indebtedness, so long as any of any Senior Obligations shall remain outstanding, no payment shall be made by any Company on account of principal of or interest on the Notes or on account any portion of the purchase Subordinated Indebtedness. If, while any Subordinated Indebtedness is outstanding and before Payment in Full has occurred in accordance with the terms of the LC Credit Agreement, any Insolvency Proceeding shall occur and be continuing with respect to any Company or redemption or other acquisition of Notes; and
its property: (ba) any direct or indirect payment or distribution of Properties the Administrative Agent hereby is irrevocably authorized and empowered (in the name of the Company of any kind or characterotherwise), whether in cashbut shall have no obligation, property or securities (other than a to demand, xxx for, collect, and receive every payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf respect of the Holders, would be entitled but Subordinated Indebtedness and give acquittance therefor and to file claims and proofs of claim and take such other action (including voting the Subordinated Indebtedness) as it may deem necessary or advisable for the provisions exercise or enforcement of this Article shall be paid by any of the Company rights or by interests of the Administrative Agent (or any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees Debt Holders) under any indenture under which any instruments evidencing any of the Loan Documents; and (b) each Company shall promptly take such Senior action as the Administrative Agent may reasonably request (i) to collect the Subordinated Indebtedness may have been issued, ratably according to for the aggregate amounts remaining unpaid on account of the Senior Indebtedness held Debt Holders and to file appropriate claims or represented by eachproofs of claim in respect of the Subordinated Indebtedness, (ii) to execute and deliver to the extent necessary Administrative Agent such powers of attorney, assignments, and other instruments as it may reasonably request to make payment in full of enable it to enforce any and all Senior Indebtedness after giving effect to any concurrent payment or distribution claims with respect to the holders of such Senior Subordinated Indebtedness; and
, and (ciii) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee to collect and receive any and all any payments or the Holder of any Note shall have received any payment or distribution of Properties of the Company distributions of any kind or character, whether in cash, property or securities, by set-off which may be payable or otherwise, deliverable in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Subordinated 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.
Appears in 1 contract
Samples: Lc Credit Agreement and u.s. Security Agreement (Weatherford International PLC)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or characteracter, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwisesecurities, to which the Holders of the Guarantees or the Trustee, on behalf of the Holders, Trustee under this Indenture would be entitled but entitled, except for the provisions of this Article hereof, shall be paid by the Company such Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee or trustee, agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee by the Holders of the Guarantees or otherwiseby the Trustee under this Indenture if received by them, directly to the holders of Guarantor Senior Indebtedness Debt of such Guarantor (pro rata to such holders on the basis of the respective amounts of such Guarantor Senior Debt held by such holders) or their representative or representatives respective Representatives, or to the trustee or trustees under any indenture under pursuant to which any instruments evidencing any of such Guarantor Senior Indebtedness Debt may have been issued, ratably according as their respective interests may appear, for application to the aggregate amounts payment of such Guarantor Senior Debt remaining unpaid on account of the until all such Guarantor Senior Indebtedness held or represented by each, to the extent necessary to make payment Debt has been paid in full of all Senior Indebtedness in cash or Cash Equivalents after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Guarantor Senior Indebtedness; andDebt.
(cb) in In the event that, notwithstanding the foregoing provisions of this Sectionforegoing, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets of the Company any Guarantor of any kind or character, whether in cash, property or securities, shall be received by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event any Holder when such payment or distribution (other than a is prohibited by Section 12.03(a), such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Guarantor Senior Debt of such Guarantor (pro rata to such holders on the basis of the respective amount of such Guarantor Senior Debt held by such holders) or their respective Representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any of such Guarantor Senior Debt may have been issued, receiveras their respective interests may appear, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, for application to the extent necessary to pay payment of such Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Indebtedness Debt has been paid in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Guarantor Senior Indebtedness. Debt.
(c) To the extent any payment of Guarantor Senior Debt (whether by or on behalf of any Guarantor, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, 125 -116- agent or other similar Person, the Guarantor Senior Debt or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
(d) The consolidation of the Company any Guarantor with, or the merger of the Company any Guarantor with or into, another Person corporation or the liquidation or dissolution of the Company any Guarantor following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties assets, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation which complies with the terms and conditions set forth provided in Article Eight hereof Section 11.05 and which does not violate any other Obligation of such Guarantor under this Indenture or Guarantee of such Guarantor and as long as permitted under the terms of the Guarantor Senior Debt of such Guarantor shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection 12.03 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, assume such Guarantor's obligations hereunder in accordance with Section 11.05.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. (a) Upon any payment or distribution of Properties the assets of the Company to creditors upon a total or partial liquidation or total or partial dissolution of the Company or payment on behalf of in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
its property (awhether voluntary or involuntary), (i) the holders of Senior Indebtedness of the Company shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or characterpayment, whether in cash, property or securities and (other than Permitted Junior Securitiesii) on account of principal of or interest on until the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties Senior Indebtedness of the Company of is paid in full, any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Notes would be entitled but for the provisions this Section will be made to holders of this Article shall be paid by Senior Indebtedness as their interests may appear, except that Holders may receive shares of stock or Indebtedness of the Company or by that is subordinated to Senior Indebtedness of the Company to at least the same extent as the Notes.
(b) Upon any liquidating trustee or agent or other Person making such payment or distribution, whether distribution of the assets of any Subsidiary Guarantor to creditors upon a trustee total or partial liquidation or total or partial dissolution of the Subsidiary Guarantor or in a bankruptcy, a receiver reorganization, insolvency, receivership or liquidating trustee similar proceeding relating to the Subsidiary Guarantor or otherwiseits property (whether voluntary or involuntary), directly to (i) the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issuedSubsidiary Guarantor shall be entitled to receive payment in full before the holders of the Notes are entitled to receive any payment, ratably according to the aggregate amounts remaining unpaid on account of and (ii) until the Senior Indebtedness held or represented by eachof such Subsidiary Guarantor is paid in full, any payment to which the extent necessary Holders of the Notes would be entitled but for this provision will be made to make payment in full holders of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Subsidiary Guarantor as their interests may appear, except that Holders may receive shares of stock or Indebtedness that is subordinated to Senior Indebtedness; andIndebtedness of the Subsidiary Guarantor to at least the same extent as the Subsidiary Guarantees.
(c) in In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note or the Beneficiary of any Subsidiary Guarantee shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property securities or securitiesother property, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making official for application to the payment or distribution of assets of the Companyall Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.
Appears in 1 contract
Samples: Indenture (Mego Mortgage Corp)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in (i) In the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Proceeding, all Senior Indebtedness shall first be entitled to receive payment paid in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are Holder is entitled to receive any direct or indirect payment or distribution of any cash, property or securities (excluding Reorganization Securities) on account of the principal of or interest on this Debenture.
(ii) The holders of Senior Indebtedness (or their respective Representatives) shall be entitled to receive directly, for application to the payment thereof (to the extent necessary to pay all such Senior Indebtedness in full after giving effect to any substantially concurrent payment or distribution to the holders of such Senior Indebtedness), any payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) excluding Reorganization Securities but including any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcyexcept Reorganization Securities, a receiver which may be payable or liquidating trustee or otherwise, directly deliverable by reason of the payment of any other Indebtedness of the Company being subordinated to the holders payment of Senior Indebtedness this Debenture) which may be payable or their representative deliverable in respect of this Debenture in any such Insolvency or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; andLiquidation Proceeding.
(ciii) in In the event that, notwithstanding the foregoing provisions of this SectionSection 3, the Trustee or the Holder of any Note shall have received any payment from or distribution of Properties assets of the Company in an Insolvency or Liquidation Proceeding or the estate created by the commencement of any such Insolvency or Liquidation Proceeding, of any kind or character, character in respect of this Debenture whether in cash, property or securitiessecurities (excluding Reorganization Securities but including any payment or distribution, except Reorganization Securities, which may be payable or deliverable by set-off or otherwise, in respect reason of principal the payment of or interest on any other Indebtedness of the Notes Company being subordinated to the payment of this Debenture) before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets holders of the CompanySenior Indebtedness remaining unpaid (or their respective Representatives), to the extent necessary to pay all such Senior Indebtedness in full, full after giving effect to any substantially concurrent payment or distribution to or for the holders of such Senior Indebtedness. The consolidation of , for application to the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness payment in full as a prerequisite to any payments being made to the Holders) for the purposes of this Sectionsuch Senior Indebtedness.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution to creditors of Properties a Guaranteeing Subsidiary in a liquidation or dissolution of such Guaranteeing Subsidiary or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to such Guaranteeing Subsidiary or its property, in an assignment for the benefit of creditors or any marshaling of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the CompanyGuaranteeing Subsidiary's assets and liabilities:
(ai) the holders of the Senior Indebtedness Guarantees shall be entitled to receive payment in full in cash of all obligations due in respect of such Senior Indebtedness, Guarantees (including interest after the commencement of any such proceeding at the rate specified in the Indebtedness to which such Senior Guarantee relates whether or provision must be made for not any such payment, interest is allowed as an enforceable claim against the Guaranteeing Subsidiary in such proceeding) before the Holders holders of the Notes are Note Guarantee shall be entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities with respect to the Note Guarantee (other than except that Holders may receive (A) Permitted Junior SecuritiesSecurities and (B) on account of principal of payments and other distributions made from any defeasance trust created pursuant to Section 8.03 or interest on the Notes or on account 8.04 of the purchase or redemption or other acquisition of NotesIndenture); and
(bii) any direct or indirect payment or distribution of Properties of until all obligations with respect to the Company of any kind or character, whether Senior Guarantees (as provided in clause (i) above) are paid in full in cash, property or securities (other than a payment or any distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf holders of the Holders, Note Guarantee would be entitled but for the provisions of this Article Section 4 shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly made to holders entitled to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account benefit of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the Guarantees (except that holders of such Senior Indebtedness; and
the Note Guarantee may receive (cA) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee Permitted Junior Securities and (B) payments and other distributions made from any defeasance trust created pursuant to Section 8.03 or the Holder of any Note shall have received any payment or distribution of Properties 8.04 of the Company of any kind or characterIndenture), whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Sectiontheir interests may appear.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon ----------------------------------------------- any payment or distribution of Properties assets of the Company to creditors upon any liquidation, dissolution, winding up, reorganization, assignment for the benefit of creditors, marshaling of assets and liabilities or payment on behalf any bankruptcy, insolvency or similar proceedings of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) , the holders of Senior Indebtedness shall of the Company will be entitled to receive payment in full of all principal, premium (if any), interest, penalties, reimbursement or indemnity amounts, fees and expenses in respect of such Senior Indebtedness (including, as provided below, any post-petition interest, whether or not an allowed claim) including all amount due or to become due on all such Senior Indebtedness, or provision must will be made for payment in cash or Cash Equivalents or otherwise in a manner satisfactory to the holders of such paymentSenior Indebtedness, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (Notes Payments other than payments in Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in . In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes Payment before all Senior Indebtedness of the Company is paid in full or payment thereof provided for in fullcash or Cash Equivalents or otherwise in a manner satisfactory to the holders of such Senior Indebtedness, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and Notes Payment shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making holders of Senior Indebtedness for application to the payment or distribution of assets of the Companysuch Senior Indebtedness remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness. 121 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 sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties properties and assets as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof VIII shall not be deemed to fall within this Section if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer such properties and assets as an Insolvency or Liquidation Proceeding (requiring entirety, as the repayment of all Senior Indebtedness in full case may be, shall, as a prerequisite to any payments being made to part of such consolidation, merger, conveyance or transfer, comply with the Holders) for the purposes of this Sectionconditions set forth in Article VIII.
Appears in 1 contract
Samples: Indenture (Afc Enterprises Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Upon any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by setto creditors upon any total or partial liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or otherwisemarshaling of assets of the Company, or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Company or its property, whether voluntary or involuntary, all Obligations with respect of principal of or interest on the Notes before to all Senior Indebtedness is Debt shall first be paid or provided for in full, then in cash, or such payment has been duly provided for to the satisfaction of the holders of Senior Debt, before any payment or distribution of any kind or character is made on account of any Obligations on the Notes, or for the acquisition of any of the Notes for cash or property or otherwise; and until all such Obligations with respect to all Senior Debt are paid in full in cash, any distribution to which the Holders of the Notes would be entitled but for the subordination provisions will be made to the holders of Senior Debt as their interests may appear. Upon any such dissolution, winding-up, liquidation, reorganization, bankruptcy, insolvency, receivership or similar proceeding or assignment for the benefit of creditors or marshaling of assets, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Notes or the Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other person making such payment or distribution, or by the Holders of the Notes or by the Trustee under this Indenture if received by them, directly to the holders of Senior Debt (pro rata to such holders on the basis of the respective amounts of Senior Debt held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Debt may have been issued, as their respective interests may appear, for application to the payment of Senior Debt remaining unpaid until all such Senior Debt has been paid in full in cash or Cash Equivalents after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of Senior Debt.
(b) To the extent any payment of Senior Debt (whether by or on behalf of the Company, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar person, the Senior Debt or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, shall be received by the Trustee or any Holder when such payment or distribution (other than a is prohibited by Section 10.03(a), such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Senior Debt (pro rata to such holders on the basis of the respective amount of Senior Debt held by such holders) or their respective Representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any of such Senior Debt may have been issued, receiveras their respective interests may appear, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, for application to the extent necessary to pay payment of Senior Debt remaining unpaid until all such Senior Indebtedness Debt has been paid in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Senior IndebtednessDebt. 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.100 -100-
Appears in 1 contract
Samples: Indenture (Info Usa)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in In the event of any an Insolvency or Liquidation Proceeding with respect to the Company:
(ai) the holders of all Senior Indebtedness shall be entitled to receive payment in full in cash or Cash Equivalents of all Senior Indebtedness (including interest after the commencement of such proceeding at the rate specified in the applicable Senior 105 Indebtedness, whether or provision must be made not a claim for such payment, interest would be allowed in such proceeding) before the Holders of the Notes Securities are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than excluding Permitted Junior SecuritiesSecurities of the Company) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; andNote Obligations;
(bii) any direct or indirect payment or distribution of Properties properties or assets of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Trustee would be entitled but for the provisions of this Article XIII shall be paid by the Company or by any liquidating trustee or agent or other Person person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and;
(ciii) in the event that, notwithstanding the foregoing provisions of this SectionSection 13.2, the Trustee or the Holder of any Note Security shall have received any payment or distribution of Properties properties or assets of the Company of any kind or character, whether in cash, property or securities, by set-set off or otherwise, in respect of principal of or interest on the Notes any Note Obligations before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness;
(iv) to the extent any payment of or distribution in respect of Senior Indebtedness (whether by or on behalf of the Company or any Subsidiary Guarantor, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then if such payment or distribution is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payments had not occurred; and
(v) to the extent that the obligation to repay any Senior Indebtedness is declared to be fraudulent, invalid or otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then the obligation so declared fraudulent, invalid or otherwise set aside (and all other amounts that would come due with respect thereto had such obligation not been so affected) shall be deemed to be reinstated and outstanding as Senior Indebtedness for all purposes hereof as if such declaration, invalidity or setting aside had not occurred. The consolidation of the Company with, or the merger of the Company with or into, another Person person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or its properties and assets substantially all its Properties as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, person upon the terms and conditions set forth in Article Eight VII hereof shall not be deemed an Insolvency a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshalling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionArticle if the person formed by such consolidation or the surviving entity of such merger 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 a part of such consolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article VII hereof to the extent applicable.
Appears in 1 contract
Samples: Indenture (Cross Timbers Oil Co)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes Subordinated Debt Securities in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(ai) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes Subordinated Debt Securities are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior SecuritiesSecurities or from any defeasance trust created pursuant to Article XI hereto) on account of principal of (or premium, if any, on) or interest on the Notes Subordinated Debt Securities or on account of the purchase or redemption or other acquisition of NotesSubordinated Debt Securities; and
(bii) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior SecuritiesSecurities or from any defeasance trust created pursuant to Article XI hereto), by set-off or otherwise, to which the Holders of Subordinated Debt Securities or the Trustee, on behalf of the HoldersHolders of Subordinated Debt Securities, would be entitled but for the provisions of this Article XII shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, distribution whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(ciii) in the event that, notwithstanding the foregoing provisions of this SectionSection 12.02, the Trustee or the Holder of any Note Subordinated Debt Security shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of (and premium, if any, on) or interest on the Notes Subordinated Debt Securities before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior SecuritiesSecurities or from any defeasance trust created pursuant to Article XI hereto) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcyholders of all Senior Indebtedness remaining unpaid, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Companytheir representatives, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight X hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the HoldersHolders of Subordinated Debt Securities) for the purposes of this SectionSection 12.02.
Appears in 1 contract
Samples: Indenture (Snyder Oil Corp)
Payment Over of Proceeds Upon Dissolution, Etc. (a) Upon any distribution to creditors of Properties the Company in a liquidation or dissolution of the Company or payment on behalf 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 with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) 's assets and liabilities, the holders of Senior Indebtedness shall will be entitled to receive payment in full in cash or Cash Equivalents of all obligations due in respect of such Senior Indebtedness (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Indebtedness, or provision must be made for such payment, ) before the Holders of the Notes are will be entitled to receive any direct payment with respect to the Notes, and until all obligations with respect to Senior Indebtedness are paid in full in cash or indirect payment or Cash Equivalents, any distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Notes would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly made to the holders of Senior Indebtedness or their representative or representatives or to (except that Holders of Notes may receive Junior Securities and payments made from the trustee or trustees defeasance trust described under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; andSections 8.04(a) 8.05.
(cb) in In the event that, notwithstanding the foregoing provisions of this Sectionprovision prohibiting such payment or distribution, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets or securities of the Company of any kind or character, whether in cash, property or securities, shall be received by set-off the Trustee or otherwise, in respect any Holder of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event at a time when such payment or distribution (other than a is prohibited by Section 11.03(a) and before all obligations in respect of Senior Indebtedness are paid in full in cash or Cash Equivalents, or payment provided for, such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their respective representatives, or to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, or trustees or agent or other Person making payment or distribution agents under any indenture pursuant to which any of assets of the Companysuch Senior Indebtedness may have been issued, as their respective interests may appear, for application to the extent necessary to pay all payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, full in cash or Cash Equivalents after giving effect to any prior or concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Senior Indebtedness. The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the liquidation or dissolution of the Company following the saleconveyance or transfer of its property as an entirety, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties as an entirety, to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth provided in Article Eight hereof 5 shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection 11.03 if such other Person shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 5.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Upon any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by setto creditors upon any liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or otherwisemarshalling of assets of the Company or in a bankruptcy, in respect of principal of reorganization, insolvency, receivership or interest on other similar proceeding relating to the Notes before Company or its property, whether voluntary or involuntary, all Obligations due or to become due upon all Senior Indebtedness is shall first be paid in full in cash or Cash Equivalents, or such payment duly provided for in fullto the satisfaction of the holders of the Senior Indebtedness, then and in such event such before any payment or distribution (other than a payment of any kind or distribution in character is made on account of any Obligations on the form Securities, or for the acquisition of Permitted Junior Securities) shall be received and held in trust any of the Securities for and shall be paid over cash or delivered forthwith to the trustee in bankruptcyproperty or otherwise. Upon any such dissolution, receiverwinding-up, liquidating trusteeliquidation, custodianreorganization, assigneereceivership or similar proceeding, agent or other Person making any payment or distribution of assets of the CompanyCompany of any kind or character, whether in cash, property or securities, to which the extent necessary Holders of the Securities or the Trustee under this Indenture would be entitled (other than any payments of fees and expenses of the Trustee and any indemnity made under Section 7.07), except for the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders of the Securities or by the Trustee under this Indenture if received by them, directly to pay all the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, full in cash or Cash Equivalents after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of Senior Indebtedness. .
(b) To the extent any payment of Senior Indebtedness (whether by or on behalf of the Company, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, shall be received by any Holder when such payment or distribution is prohibited by Section 10.03(a), such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amount of Senior Indebtedness by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full in cash or Cash Equivalents, after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Senior Indebtedness.
(d) The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties assets, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight hereof Five and as long as permitted under the terms of the Senior Indebtedness shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, assume the Company's obligations hereunder in accordance with Article Five.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in In the event of any an Insolvency or Liquidation Proceeding with respect to the Company:
(a1) the holders of all Senior Indebtedness shall be entitled to receive payment in full in cash or cash equivalents of such all Senior Indebtedness, or provision must be made for such payment, Indebtedness before the Holders of the Notes Securities are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities character (other than excluding Permitted Junior SecuritiesSecurities of the Company) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of NotesSenior Subordinated Note Obligations; and
(b2) any direct or indirect payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Trustee would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c3) in the event that, notwithstanding the foregoing provisions of this SectionSection 14.2, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties properties or assets of the Company of any kind or character, whether in cash, property or securities, by set-set off or otherwise, in respect of principal of or interest on the Notes any Senior Subordinated Note Obligations before all Senior Indebtedness is paid or -108- 116 provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation of the Company with, or the merger of the Company with or into, another Person person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or its properties and assets substantially all its Properties as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, person upon the terms and conditions set forth in Article Eight VIII hereof shall not be deemed an Insolvency a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshalling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionArticle if the person formed by such consolidation or the surviving entity of such merger 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 a part of such consolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article VIII hereof to the extent applicable.
Appears in 1 contract
Samples: Indenture (Ocean Energy Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in (i) In the event of any Insolvency Bankruptcy Event, all Senior Indebtedness shall first be paid in full before the Holder is entitled to receive any direct or Liquidation Proceeding with respect to indirect payment or distribution of any cash, property or securities (excluding Reorganization Securities) on account of the Company:principal of or interest on this Debenture.
(aii) the The holders of Senior Indebtedness shall be entitled to receive directly, for application to the payment thereof (to the extent necessary to pay all such Senior Indebtedness in full after giving effect to any substantially concurrent payment or distribution to the holders of such Senior Indebtedness), or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) excluding Reorganization Securities but including any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcyexcept Reorganization Securities, a receiver which may be payable or liquidating trustee or otherwise, directly deliverable by reason of the payment of any other Indebtedness of the Company being subordinated to the holders payment of Senior Indebtedness this Debenture) which may be payable or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any deliverable in respect of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment this Debenture in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; andconnection with a Bankruptcy Event.
(ciii) in In the event that, notwithstanding the foregoing provisions of this SectionSection 3, the Trustee or the Holder of any Note shall have received any payment from or distribution of Properties assets of the Company in connection with a Bankruptcy Event or the estate created by the commencement of any such Bankruptcy Event, of any kind or character, character in respect of this Debenture whether in cash, property or securitiessecurities (excluding Reorganization Securities but including any payment or distribution, except Reorganization Securities, which may be payable or deliverable by set-off or otherwise, in respect reason of principal the payment of or interest on any other Indebtedness of the Notes Company being subordinated to the payment of this Debenture) before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets holders of the CompanySenior Indebtedness remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in full, full after giving effect to any substantially concurrent payment or distribution to or for the holders of such Senior Indebtedness. The consolidation of , for application to the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness payment in full as a prerequisite to any payments being made to the Holders) for the purposes of this Sectionsuch Senior Indebtedness.
Appears in 1 contract
Samples: Convertible Security Agreement (US Dry Cleaning Services Corp)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in (a) In the event of any Insolvency a Bankruptcy Event, then all principal, premium, if any, and interest due or Liquidation Proceeding with respect to the Company:
(a) the holders of become due on all Senior Indebtedness shall must be entitled to receive payment paid in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes Noteholders are entitled to receive or retain any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; andrespect thereof.
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in In the event that, notwithstanding the foregoing provisions of this SectionArticle, the Trustee or the Holder of any Note Noteholder shall have received in a Bankruptcy Event, any payment or distribution of Properties assets of the Company Issuer of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid in full or payment thereof provided for in fullfor, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyIssuer for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation Any taxes that have been withheld or deducted from any payment or distribution in respect of the Company withNotes, or any taxes that ought to have been withheld or deducted from any such payment or distribution that have been remitted to the merger of relevant taxing authority, shall not be considered to be an amount that the Company into, another Person Trustee or the liquidation or dissolution Noteholder receives for purposes of the Company following the sale, assignment, conveyance, transfer, lease or other disposition this Article 12.
(c) For purposes of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance withthis Article, the terms and conditions set forth in Article Eight hereof words “cash, property or securities” shall not be deemed an Insolvency to include shares of stock of the Issuer as reorganized or Liquidation Proceeding (requiring readjusted, or securities of the repayment Issuer or any other corporation provided for by a plan of all Senior Indebtedness reorganization or readjustment which are subordinated in full as a prerequisite to any payments being made right of payment to the Holders) for the purposes of this SectionSenior Indebtedness.
Appears in 1 contract
Samples: Indenture
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in In the event of any an Insolvency or Liquidation Proceeding with respect to the Company:
(ai) the holders of all Senior Indebtedness shall be entitled to receive payment in full in cash or Cash Equivalents of all Senior Indebtedness (including interest after the commencement of such proceeding at the rate specified in the applicable Senior Indebtedness, whether or provision must be made not a claim for such payment, interest would be allowed in such proceeding) before the Holders of the Notes Securities are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than excluding Permitted Junior SecuritiesSecurities of the Company) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; andNote Obligations;
(bii) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Trustee would be entitled but for the provisions of this Article XIII shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or Cash Equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and;
(ciii) in the event that, notwithstanding the foregoing provisions of this SectionSection 13.2, the Trustee or the Holder of any Note Security shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-set off or otherwise, in respect of principal of or interest on the Notes any Note Obligations before all Senior Indebtedness is paid or provided for in fullfull in cash or Cash Equivalents, then and in such event such payment or distribution (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation ; 109 118 (iv) to the extent any payment of or distribution in respect of Senior Indebtedness (whether by or on behalf of the Company withor any Subsidiary Guarantor, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance, fraudulent transfer or similar law, then if such payment or distribution is recovered by, or the merger of the Company intopaid over to, another Person or the liquidation or dissolution of the Company following the salesuch receiver, assignmenttrustee in bankruptcy, conveyanceliquidating trustee, transfer, lease agent or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance withsimilar person, the terms and conditions set forth in Article Eight hereof Senior Indebtedness or part thereof originally intended to be satisfied shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full to be reinstated and outstanding as a prerequisite to any if such payments being made to the Holders) for the purposes of this Section.had not occurred; and
Appears in 1 contract
Samples: Indenture (Pogo Producing Co)
Payment Over of Proceeds Upon Dissolution, Etc. Upon of Company. In the event of any distribution of Properties of insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or payment on behalf of the Company with respect to the Notes its creditors, as such, or to its property, and in the event of any Insolvency voluntary liquidation, dissolution or Liquidation Proceeding with respect to other winding up of the Company:
(a) , whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall be entitled to receive payment in full of such all amounts due or to become due on or in respect of all Senior Indebtedness, or provision must be made for such payment, Indebtedness before the Holders of the Notes Securities are entitled to receive any direct payment on account of principal of (or indirect premium, if any) or interest on the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provision reflecting 1301,1401,1402 96 88 the rights conferred by the provisions of this Article upon the Senior Indebtedness and the holders thereof with respect to the Securities and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive any payment or distribution of any kind or character, whether in cash, property or securities, which may be payable or deliverable in any such case or proceeding in respect of the Securities, except securities of the Company which are subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness then outstanding. If, notwithstanding the foregoing, the Trustee or the Holder of any Security shall have received any payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securitiesas aforesaid), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid in full or payment thereof provided for in fullfor, and if such fact shall then have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets or securities of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. If any Securities are declared due and payable before their Stated Maturity because of the occurrence of an Event of Default (under circumstances when the provisions of the foregoing paragraph shall not be applicable), the holders of the Senior Indebtedness outstanding at the time such Securities become due and payable because of such occurrence of an Event of Default shall be entitled to receive payment in full of all amounts due or to become due or in respect of all Senior Indebtedness before the Holders of the Securities are entitled to receive any payment on account of the principal of (or premium, if any) or interest on the Securities. The consolidation of the Company with, or the merger of the Company into, another Person corporation or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or its properties and assets substantially all its Properties as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency a dissolution, winding up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article Eight. Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 607.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in In the event of any an Insolvency or Liquidation Proceeding with respect to the Company:
(ai) the holders of all Senior Indebtedness shall be entitled to receive payment in full in cash or Cash Equivalents of all Senior Indebtedness (including interest after the commencement of such proceeding at the rate specified in the applicable Senior Indebtedness, whether or provision must be made not a claim for such payment, interest would be allowed in such proceeding) before the Holders of the Notes Securities are entitled to receive any direct or indirect payment payment, purchase or distribution of any kind or character, whether in cash, property or securities (other than excluding Permitted Junior SecuritiesSecurities of the Company) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; andSecurities;
(bii) any direct or indirect payment or distribution of Properties properties or assets of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Trustee would be entitled but for the provisions of this Article XIII shall be paid by the Company or by any liquidating trustee or agent or other Person person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and;
(ciii) in the event that, notwithstanding the foregoing provisions of this SectionSection 13.2, the Trustee or the Holder of any Note Security shall have received any payment or distribution of Properties properties or assets of the Company of any kind or character, whether in cash, property or securities, by set-set off or otherwise, in respect of principal of or interest on the Notes any Security before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness;
(iv) to the extent any payment of or distribution in respect of Senior Indebtedness (whether by or on behalf of the Company, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then if such payment or distribution is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payments had not occurred; and
(v) to the extent that the obligation to repay any Senior Indebtedness is declared to be fraudulent, invalid or otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then the obligation so declared fraudulent, invalid or otherwise set aside (and all other amounts that would come due with respect thereto had such obligation not been so affected) shall be deemed to be reinstated and outstanding as Senior Indebtedness for all purposes hereof as if such declaration, invalidity or setting aside had not occurred. The consolidation of the Company with, or the merger of the Company with or into, another Person person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or its properties and assets substantially all its Properties as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, person upon the terms and conditions set forth in Article Eight hereof VII shall not be deemed an Insolvency a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshalling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionArticle if the person formed by such consolidation or the surviving entity of such merger 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 a part of such consolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article VII to the extent applicable.
Appears in 1 contract
Samples: Indenture (Xto Energy Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties In case of the Company pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or payment on behalf of other judicial proceeding relative to the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) a "Proceeding"), then the holders of Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become due on such Senior Indebtedness, or provision must shall be made for such paymentpayment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, before the Holders of the Notes are entitled to receive or retain any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (including any payment or distribution which may be payable or deliverable by reason of the payment of any other than Permitted indebtedness or obligations of the Company subordinated to the payment of the Debentures, such payment or distribution being hereinafter referred to as a "Junior Securities) Subordinated Payment"), on account of principal of of, premium, if any, or interest (including any Additional Interest) on the Notes Debentures or on account of the purchase or redemption or other acquisition of Notes; and
(b) 77 Debentures by the Company or any direct or indirect Subsidiary and to that end the holders of Senior Indebtedness shall be entitled to receive, for application to the payment thereof, any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment securities, including any Junior Subordinated Payment, which may be payable or distribution deliverable in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf respect of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by Debentures in any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in Proceeding. In the event that, notwithstanding the foregoing provisions of this SectionSection 14.2, the Trustee or the Holder of any Note Debenture shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by set-off including any Junior Subordinated Payment, before all amounts due or otherwise, in respect of principal of or interest to become due on the Notes before all Senior Indebtedness are paid in full or payment thereof is paid or provided for in fullcash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Indebtedness, 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, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all amounts due or to become due on all Senior Indebtedness remaining unpaid, to the extent necessary to pay all amounts due or to become due on all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or 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 sale, assignment, conveyance, transfer, lease or other disposition sale of all or substantially all of its Properties properties and assets as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof VIII shall not be deemed an Insolvency or Liquidation a Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionSection 14.2 if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by sale such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger, or sale comply with the conditions set forth in Article VIII.
Appears in 1 contract
Samples: Indenture (Caremark Rx Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in In the event of (i) any Insolvency insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or Liquidation Proceeding with respect other similar proceeding relating to the Company:
, its creditors or its property, (aii) any proceeding for the holders liquidation, dissolution or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, (iii) any assignment by the Company for the benefit of its creditors or (iv) any other marshalling of the assets of the Company, all Senior Indebtedness shall first be entitled to receive payment paid in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or characterdistribution, whether in cash, property securities or securities (other than Permitted Junior Securities) on account of principal of or interest on property, shall be made by the Notes or Company on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect Debentures. Any payment or distribution of Properties of the Company of any kind or characterdistribution, whether in cash, securities or other property or securities (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, the payment or distribution of which is subordinate, at least to the extent provided in the form subordination provisions of Permitted Junior Securitiesthe Indenture with respect to the indebtedness evidenced by the Debentures, 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), by set-off which would otherwise (but for such subordination provisions) be payable or otherwise, to which the Holders or the Trustee, on behalf deliverable in respect of the Holders, would be entitled but for the provisions of this Article Debentures shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, delivered directly to the holders of Senior Indebtedness or their representative or representatives or to in accordance with the trustee or trustees under any indenture under which any instruments evidencing any of priorities then existing among such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of holders until all Senior Indebtedness after giving effect shall have been paid in full. No present or future holder of any Senior Indebtedness shall be prejudiced in the right to enforce subordination of the Debentures by any concurrent payment act or distribution failure to act on the holders part of such Senior Indebtedness; and
(c) in the Company. In the event that, notwithstanding the foregoing provisions of this Sectionforegoing, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, prohibited by set-off or otherwisethe foregoing, in respect of principal of or interest on shall be received by the Notes Trustee before all Senior Indebtedness of the Company is paid or provided for in full, then and or provision is made for such payment in such event money in accordance with its terms, such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of and shall be paid over or delivered forthwith to the holders of such Senior Indebtedness or their representative or representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, receiverand their respective interests may appear, liquidating trusteeas calculated by the Company, custodian, assignee, agent or other Person making for application to the payment or distribution of assets all Senior Indebtedness of the Company, as the case may be, remaining unpaid to the extent necessary to pay all such Senior Indebtedness in fullfull in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such 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 sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or its properties and assets substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed as an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.entirety
Appears in 1 contract
Samples: Indenture (Lodgian Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon In the event of (i) any distribution of Properties insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property, (ii) any proceeding for the liquidation, dissolution or other winding up of the Company voluntarily or payment on behalf involuntarily, whether or not involving insolvency or bankruptcy proceedings, (iii) any assignment by the Company for the benefit of creditors or (iv) any other marshalling of assets of the Company, all amounts due upon all Senior Indebtedness of the Company with respect to (including any interest thereon accruing after the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full commencement of such Senior Indebtednessproceedings) shall first be paid in full, or provision must be made payment thereof provided for such paymentin money in accordance with its terms, before any payment is made by the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) Company on account of the principal of (and premium, if any) or interest on the Notes or on account of Convertible Debentures; and any payment by the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment Company, or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, to which the Holders of the Convertible Debentures or the Trustee would be entitled to receive from the Company, except for the provisions of this Article, shall be paid by set-off the Company or otherwiseby any receiver, trustee in respect bankruptcy, liquidation trustee, agent or other Person making such payment or distribution, or by the Holders of principal the Convertible Debentures or by the Trustee under this Indenture if received by them or it, directly to the holders of or interest Senior Indebtedness of the Company (pro rata to such holders on the Notes basis of the respective amounts of Senior Indebtedness held by such holders, as calculated by the Company) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay such Senior Indebtedness (including any interest thereon accruing after the commencement of such proceedings) in full, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Convertible Debentures or to the Trustee. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee before all Senior Indebtedness of the Company is paid or provided for in full, then and in or provision is made for such event payment, such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of and shall be paid over or delivered forthwith to the holders of such Senior Indebtedness or their representative or representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, receiverand their respective interests may appear, liquidating trusteeas calculated by the Company, custodian, assignee, agent or other Person making for application to the payment or distribution of assets all Senior Indebtedness of the Company, as the case may be, remaining unpaid to the extent necessary to pay all such Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Senior Indebtedness. For purposes of this Article only, the words "cash, property or securities" shall not be deemed to include shares of Capital Stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which are subordinated in right of payment to all Senior Indebtedness which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Convertible Debentures are so subordinated as provided in this Article. 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 sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or its properties and assets substantially all its Properties as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof IX of this Indenture shall not be deemed an Insolvency a dissolution, winding up, liquidation, reorganization, readjustment, composition, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshalling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionSection if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article IX of this Indenture.
Appears in 1 contract
Samples: Indenture (Capital Trust)
Payment Over of Proceeds Upon Dissolution, Etc. Upon In the event of (i) any distribution of Properties of insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or payment on behalf to its creditors, as such, or to its assets; or (ii) any liquidation, dissolution or other winding up of the Company with respect to Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy; or (iii) any assignment for the Notes in the event benefit of creditors or any Insolvency other marshalling of assets or Liquidation Proceeding with respect to liabilities of the Company:, then and in any such event specified in clause (i), clause (ii) or clause (iii) above (each such event, if any, herein sometimes referred to as a "Proceeding"):
(a1) the holders of Senior Indebtedness shall Debt will be entitled to receive payment in full of such Senior Indebtedness, Debt in full in cash or provision must be made for such payment, Cash Equivalents before the Holders of the Notes Noteholders are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, securities or other property or securities with respect to the principal of, premium, (other than Permitted Junior Securities) on account of principal of if any), or interest on or other obligations in respect of the Notes Notes, or on account of the any purchase or redemption or other acquisition of NotesNotes by the Company (all such payments, distributions, purchases and acquisitions herein referred to, individually and collectively, as a "Notes Payment"), and to that end the holders of Senior Debt of the Company shall be entitled to receive, for application to the payment thereof, any Notes Payment which may be payable or deliverable in respect of the Notes in any such Proceeding; and
(b2) until the Senior Debt is paid in full in cash or Cash Equivalents, any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, Notes Payment to which the Holders or the Trustee, on behalf of the Holders, Noteholders would be entitled but for the provisions of this Article shall XI will be paid by the Company or by any liquidating trustee or agent or other Person making made to holders of such payment or distributionSenior Debt as their interests may appear. If a Notes Payment is made to Noteholders that, whether a trustee due to this Article XI should not have been made to them such Noteholders are required to hold it in bankruptcy, a receiver or liquidating trustee or otherwise, directly to trust for the holders of Senior Indebtedness or Debt and pay it over to them as their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness interests may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in appear. In the event that, notwithstanding the foregoing provisions of this SectionSection 11.02, the Trustee or the Holder of any Note shall have received any receives payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all the Senior Indebtedness Debt of the Company is paid in full in cash or provided for in fullCash Equivalents, then and in such event event, such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and Notes Payment shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Debt of the Company remaining unpaid, to the extent necessary to pay all the Senior Indebtedness Debt of the Company in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessDebt of the Company. 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 sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties properties and assets as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof VI shall not be deemed an Insolvency or Liquidation a Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionSection 11.02 if the person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer such properties and assets as an entirety, as the case may be, shall, as part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article VI.
Appears in 1 contract
Samples: Indenture (Goss Holdings Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities Notes (other than Permitted Junior SecuritiesNotes) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities Notes (other than a payment or distribution in the form of Permitted Junior SecuritiesNotes), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securitiesNotes, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior SecuritiesNotes) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.
Appears in 1 contract
Samples: Indenture (Callon Petroleum Co)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Upon any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by setto creditors upon any liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or otherwisemarshalling of assets of the Company or in a bankruptcy, in respect of principal of reorganization, insolvency, receivership or interest on other similar proceeding relating to the Notes before Company or its property, whether voluntary or involuntary, all Obligations due or to become due upon all Senior Indebtedness is shall first be paid in full in cash or Cash Equivalents, or such payment duly provided for in fullto the satisfaction of the holders of the Senior Indebtedness, then and in such event such before any payment or distribution (other than a payment of any kind or distribution in character is made on account of any Obligations on the form Securities, or for the acquisition of Permitted Junior Securities) shall be received and held in trust any of the Securities for and shall be paid over cash or delivered forthwith to the trustee in bankruptcyproperty or otherwise. Upon any such dissolution, receiverwinding-up, liquidating trusteeliquidation, custodianreorganization, assigneereceivership or similar proceeding, agent or other Person making any payment or distribution of assets of the CompanyCompany of any kind or character, whether in cash, property or securities, to which the extent necessary Holders of the Securities or the Trustee under this Indenture would be entitled (other than any payments of fees and expenses of the Trustee and any indemnity made under Section 7.07), except for the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders of the Securities or by the Trustee under this Indenture if received by them, directly to pay all the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, full in cash or Cash Equivalents after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of Senior Indebtedness. The consolidation .
(b) To the extent any payment of Senior Indebtedness (whether by or on behalf of the Company withCompany, as proceeds of security or the merger enforcement of the Company intoany right of setoff or otherwise) is declared to be fraudulent or preferential, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.aside or
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in (a) In the event of any Insolvency or Liquidation Proceeding Proceeding, (1) all Senior Indebtedness under or with respect to the Company:
Senior Agreement and (a2) the holders all amounts then payable in respect of any other Senior Indebtedness shall first be entitled to receive payment paid in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders holder of the Notes are Note is entitled to receive any direct or indirect payment or distribution of any cash, property or securities (excluding Reorganization Securities) on account of principal of (or premium, if any) or interest on the Note or of any other Subordinated Indebtedness.
(b) The holders of Senior Indebtedness, or their Representatives, shall be entitled to receive (pro rata on the basis of the respective amounts of such Senior Indebtedness held by them) directly, for application to the payment thereof (to the extent necessary to pay all such Senior Indebtedness in full after giving effect to any substantially concurrent payment or distribution to the holders of such Senior Indebtedness), any payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) excluding Reorganization Securities but including any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcyexcept Reorganization Securities, a receiver which may be payable or liquidating trustee or otherwise, directly deliverable by reason of the payment of any other Indebtedness of the Company being subordinated to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account payment of the Senior Indebtedness held Note) which may be payable or represented by each, to deliverable in respect of the extent necessary to make payment Note in full of all Senior Indebtedness after giving effect to any concurrent payment such insolvency or distribution to the holders of such Senior Indebtedness; andLiquidation Proceeding.
(c) in In the event that, notwithstanding the foregoing provisions of this SectionSection 8.2, the Trustee or the Holder any holder of any Note Subordinated Indebtedness shall have received any payment from or distribution of Properties assets of the Company or the estate created by the commencement of any such insolvency or Liquidation Proceeding, of any kind or charactercharacter in respect of the Note, whether in cash, property or securitiessecurities (excluding Reorganization Securities but including any payment or distribution, except Reorganization Securities, which may be payable or deliverable by set-off or otherwise, in respect reason of principal the payment of or interest on any other Indebtedness of the Notes Company being subordinated to the payment of the Note) before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith over, to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent holders (or other Person making payment or distribution of assets their Representatives) of the CompanySenior Indebtedness (pro rata on the basis of the respective amounts of such Senior Indebtedness held by them) remaining unpaid, to the extent necessary to pay all such Senior Indebtedness in full, full after giving effect to any substantially concurrent payment or distribution to or for the holders (or their Representatives) of such Senior Indebtedness. The consolidation of , for application to the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness payment in full as a prerequisite to any payments being made to the Holders) for the purposes of this Sectionsuch Senior Indebtedness.
Appears in 1 contract
Samples: Senior Subordinated Loan Agreement (Precision Standard Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in In the event of any an Insolvency or Liquidation Proceeding with respect to the Company:
(ai) the holders of all Senior Indebtedness shall be entitled to receive payment in full in cash or cash equivalents of such all Senior Indebtedness, or provision must be made for such payment, Indebtedness before the Holders of the Notes Securities are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than excluding Permitted Junior SecuritiesSecurities of the Company and payments made from the trust established in compliance with Article XI hereof) on account of principal of or interest on the Notes Note Obligations or on account of the purchase or redemption or other acquisition of Notes; andany Note Obligations;
(bii) any direct or indirect payment or distribution of Properties properties or assets of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company and payments made from the trust established in compliance with Article XI hereof), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Trustee would be entitled but for the provisions of this Article XIII shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and;
(ciii) in the event that, notwithstanding the foregoing provisions of this SectionSection 13.2, the Trustee or the Holder of any Note Security shall have received any payment or distribution of Properties properties or assets of the Company of any kind or character, whether in cash, property or securities, by set-set off or otherwise, in respect of principal of or interest on the Notes any Note Obligations before all 105 114 Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company and payments made from the trust established in compliance with Article XI hereof) shall be received and held in trust for the holders of the Senior Indebtedness and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness;
(iv) to the extent any payment of or distribution in respect of Senior Indebtedness (whether by or on behalf of the Company or any Subsidiary Guarantor, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then if such payment or distribution is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payments and distributions had not occurred; and
(v) to the extent that the obligation to repay any Senior Indebtedness is declared to be fraudulent, invalid or otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then the obligation so declared fraudulent, invalid or otherwise set aside (and all other amounts that would come due with respect thereto had such obligation not been so affected) shall be deemed to be reinstated and outstanding as Senior Indebtedness for all purposes hereof as if such declaration, invalidity or setting aside had not occurred. The consolidation of the Company with, or the merger of the Company with or into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or its properties and assets substantially all its Properties as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight VII hereof shall not be deemed an Insolvency a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshalling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionArticle if the Person formed by such consolidation or the surviving entity of such merger 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 a part of such consolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article VII hereof to the extent applicable.
Appears in 1 contract
Samples: Indenture (Petsec Energy Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon If the Debenture Guarantor shall default in the payment of any distribution principal of Properties (or premium, if any) or interest on any Guarantor Senior Indebtedness when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration of the Company acceleration or payment on behalf otherwise, then, upon written notice of the Company with respect such default to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) Debenture Guarantor by the holders of Guarantor Senior Indebtedness or any trustee therefor, unless and until such default shall be entitled have been cured or waived or shall have ceased to receive payment in full of such Senior Indebtednessexist, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any no direct or indirect payment or distribution of any kind or character, whether (in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or characterproperty, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, ) shall be made or agreed to be made in respect of principal the Guarantee. In the event of (a) any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceedings relating to the Debenture Guarantor, its creditors or its property, (b) any proceeding for the liquidation, dissolution or other winding up of the Debenture Guarantor, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, (c) any assignment by the Debenture Guarantor for the benefit of creditors or (d) any other marshalling of the assets of the Debenture Guarantor (each such event, if any, herein sometimes referred to as a "GUARANTOR PROCEEDING"), all Guarantor 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 in respect of the Guarantee. Any payment or distribution, whether in cash, securities or other property (other than securities of the Debenture Guarantor 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 Guarantee, to the payment of all Guarantor 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 Guarantee shall be paid or delivered directly to the holders of Guarantor Senior Indebtedness in accordance with the priorities then existing among such holders until all Guarantor Senior Indebtedness (including any interest thereon accruing after the commencement of any Guarantor Proceeding) shall have been paid in full. In the event of any Guarantor Proceeding, after payment in full of all sums owing with respect to Guarantor Senior Indebtedness, the Holders of the Securities, together with the holders of any obligations of the Debenture Guarantor ranking on a parity with the Notes Guarantee, shall be entitled to be paid from the remaining assets of the Debenture Guarantor the amounts at the time due and owing in respect of the Guarantee 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 Debenture Guarantor ranking junior to the Guarantee and such other obligations. If, notwithstanding the foregoing, any payment or distribution of any character or any security, whether in cash, securities or other property (other than securities of the Debenture Guarantor 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 Guarantee, to the payment of all Guarantor Senior Indebtedness at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), shall be received by the Trustee or any Holder in contravention of any of the terms hereof and before all Guarantor Senior Indebtedness is shall have been paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) security shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith and transferred to, the holders of the Guarantor Senior Indebtedness at the time outstanding in accordance with the priorities then existing among such holders for application to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Companyall Guarantor Senior Indebtedness remaining unpaid, to the extent necessary to pay all such Guarantor Senior Indebtedness in full. In the event of the failure of the Trustee or any Holder to endorse or assign any such payment, after giving effect distribution or security, each holder of Guarantor Senior Indebtedness is hereby irrevocably authorized to any concurrent payment endorse or distribution assign the same. The Trustee and the Holders shall take such action (including, without limitation, the delivery of this Indenture to or an agent for the holders of Guarantor Senior IndebtednessIndebtedness or consent to the filing of a financing statement with respect hereto) as may, in the opinion of counsel designated by the holders of a majority in principal amount of the Guarantor Senior Indebtedness at the time outstanding, be necessary or appropriate to assure the effectiveness of the subordination effected by these provisions. The consolidation provisions of this Section 15.2 shall not impair any rights, interests, remedies or powers of any secured creditor of the Company with, or Debenture Guarantor in respect of any security interest the merger creation of which is not prohibited by the provisions of this Indenture. The securing of any obligations of the Company intoGuarantor, another Person otherwise ranking on a parity with the Guarantee or ranking junior to the liquidation or dissolution of the Company following the saleGuarantee, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency to prevent such obligations from constituting, respectively, obligations ranking on a parity with the Guarantee or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made ranking junior to the Holders) for the purposes of this SectionGuarantee.
Appears in 1 contract
Samples: Junior Subordinated Indenture (Zions Institutional Capital Trust A)
Payment Over of Proceeds Upon Dissolution, Etc. (a) Upon any distribution to creditors of Properties any Guarantor in a liquidation or dissolution of such Guarantor or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the Guarantor or its property, an assignment for the benefit of creditors or any marshaling of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) Guarantor's assets and liabilities, the holders of Senior Indebtedness shall of such Guarantor will be entitled to receive payment in full in cash or Marketable Securities of all Obligations due in respect of the Senior Indebtedness of such Guarantor (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Indebtedness, or provision must be made for Indebtedness of such payment, Guarantor) before the Holders holders of the Notes are Guarantees will be entitled to receive any direct payment with respect to the Guarantees, and until all Obligations with respect to Senior Indebtedness of such Guarantor are paid in full in cash or indirect payment or Marketable Securities, any distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf holders of the Holders, Guarantees would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly made to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the Guarantor (except that holders of such Senior Indebtedness; andGuarantees may receive Permitted Junior Securities and payments made from the defeasance trust).
(cb) in In the event that, notwithstanding the foregoing provisions of this Sectionprovision prohibiting such payment or distribution, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets or securities of the Company any Guarantor of any kind or character, whether in cash, property or securities, shall be received by set-off the Trustee or otherwise, in respect any holder of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event Securities at a time when such payment or distribution (other than a is prohibited by Section 12.03(a) and before all Obligations in respect of the Senior Indebtedness of such Guarantor are paid in full in cash or Marketable Securities, or payment provided for, such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of the Senior Indebtedness of such Guarantor (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness of such Guarantor held by such holders) or their respective representatives, or to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, or trustees or agent or other Person making agents under any indenture pursuant to which any of Senior Indebtedness of such Guarantor may have been issued, as their respective interests may appear, for application to the payment or distribution of assets of the Company, to the extent necessary to pay Senior Indebtedness of such Guarantor remaining unpaid until all Senior Indebtedness of such Guarantor has been paid in full, full in cash or Marketable Securities after giving effect to any prior or concurrent payment payment, distribution or distribution provision therefor to or for the holders of Senior IndebtednessIndebtedness of such Guarantor; provided that the Trustee shall be entitled to receive from the holders of Senior Indebtedness of such Guarantor written notice of the amounts owing on the Senior Indebtedness of such Guarantor. The consolidation of the Company Guarantor with, or the merger of the Company Guarantor with or into, another Person corporation or the liquidation or dissolution of the Company Guarantor following the saleconveyance or transfer of its property as an entirety, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties as an entirety, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight hereof Five shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection 12.03 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Five.
Appears in 1 contract
Samples: Indenture (Carson Products Co)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Upon any payment or distribution of Properties assets of the Company any Guarantor of any kind or character, whether in cash, property or securities, by set-off to creditors upon any total or otherwisepartial liquidation, dissolution, winding up, reorganization, assignment for the benefit of creditors or marshalling of assets and liabilities of such Guarantor or in respect a bankruptcy, reorganization, insolvency, receivership or other similar proceeding relating to such Guarantor or its property, whether voluntary or involuntary, all Obligations due or to become due upon all Guarantor Senior Debt shall first be paid in full in cash or Cash Equivalents, before any payment or distribution of principal any kind or character is made on account of or interest any Obligations on the Notes before or any of the Obligations of such Guarantor on its Guarantee, or for the acquisition of any of the Notes for cash or property or otherwise; and until all such Obligations with respect to all Guarantor Senior Indebtedness Debt are paid in full in cash or Cash Equivalents, any distribution to which the Holders of the Notes would be entitled but for the subordination provisions will be made to the holders of Guarantor Senior Debt as their interests may appear. Upon any such dissolution, winding-up, liquidation, reorganization, receivership or similar proceeding, any payment or distribution of assets of any Guarantor of any kind or character, whether in cash, property or securities, to which the Holders of the Notes or the Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by such Guarantor or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders or by the Trustee under this Indenture if received by them, directly to the holders of Guarantor Senior Debt of such Guarantor (pro rata to such holders on the basis of the respective amounts of such Guarantor Senior Debt held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Guarantor Senior Debt may have been issued, as their respective interests may appear, for application to the payment of such Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Debt has been paid in full in cash or Cash Equivalents after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Guarantor Senior Debt.
(b) To the extent any payment of such Guarantor Senior Debt (whether by or on behalf of such Guarantor, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or provided for other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in fullbankruptcy, then liquidating trustee, agent or other similar Person, such Guarantor Senior Debt or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of such Guarantor of any kind or character, whether in such event cash, property or securities, shall be received by any Holder when such payment or distribution (other than a is prohibited by Section 12.03(a), such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of such Guarantor Senior Debt (pro rata to such holders on the basis of the respective amount of such Guarantor Senior Debt held by such holders) or their respective Representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any of such Guarantor Senior Debt may have been issued, receiveras their respective interests may appear, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, for application to the extent necessary to pay payment of such Guarantor Senior Debt remaining unpaid until all such Guarantor Senior Indebtedness Debt has been paid in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Guarantor Senior Indebtedness. Debt.
(d) The consolidation of the Company any Guarantor with, or the merger of the Company any Guarantor with or into, another Person corporation or the liquidation or dissolution of the Company any Guarantor following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties assets, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight hereof Section 11.06 and as long as permitted under the terms of the Guarantor Senior Debt of such Guarantor shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, assume such Guarantor's obligations hereunder in accordance with Section 11.06.
Appears in 1 contract
Samples: Indenture (Railworks Corp)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties In case of the Company pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or payment on behalf of other judicial proceeding relative to the Company with respect (each such event, if any, herein sometimes referred to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) as a "Proceeding"), then the holders of Senior Indebtedness Debt shall be entitled to receive payment in full of principal of (and premium, if any) and interest (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Debt), if any, on such Senior IndebtednessDebt, or provision must shall be made for such paymentpayment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, before the Holders of the Notes Debentures are entitled to receive or retain any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities Debentures (including any payment or distribution which may be payable or deliverable by reason of the payment of any other than Permitted Debt of the Company (including the Debentures) subordinated to the payment of the Debentures, but not including any payments that are made from funds on deposit pursuant to Section 4.1(a)(ii)(B) or funds on deposit for the redemption of Debentures for which notice of Redemption has been given and the applicable Redemption Date has passed, such payment or distribution being hereinafter referred to as a "Junior Securities) Subordinated Payment"), on account of principal of (or premium, if any) or interest (including any Additional Interest) on the Notes Debentures or on account of the purchase or redemption or other acquisition of Notes; and
(b) Debentures by the Company or any direct or indirect Subsidiary and to that end the holders of Senior Debt shall be entitled to receive, for application to the payment thereof any payment or distribution of Properties of the Company of any kind or of character, whether in cash, property or securities (other than a payment Debentures, including any Junior Subordinated Payment, which may be payable or distribution deliverable in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf respect of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by Debentures in any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in Proceeding. In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note Debenture shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securitiesDebentures, by set-off or otherwiseincluding any Junior Subordinated Payment, in respect of principal of or interest on the Notes before all Senior Indebtedness Debt is paid in full or payment thereof is provided for in fullcash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all Senior Indebtedness Debt in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessDebt. For the purposes of this Article only, the words "any payment or distribution of any kind or character, whether in cash, property or securities" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which securities are subordinated in right of payment to all then outstanding Senior Debt to substantially the same extent as the Debentures are so subordinated as provided in this Article. 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 sale, assignment, conveyance, transfer, lease or other disposition sale of all or substantially all of its Properties properties and assets as an entirety to another Person or group the liquidation or dissolution of Affiliated Persons pursuant to, the Company following the sale of all or substantially all of its properties and in compliance with, assets as an entirety to another Person upon the terms and conditions set forth in Article Eight hereof 8 shall not be deemed an Insolvency or Liquidation a Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionSection if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by sale such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger, or sale comply with the conditions set forth in Article Eight.
Appears in 1 contract
Samples: Indenture (Host Marriott Corp/Md)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, to creditors upon any dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or marshaling of assets and liabilities of the Company, whether voluntary or involuntary or in bankruptcy, insolvency, receivership or similar proceedings, all amounts due upon all Senior Indebtedness of the Company shall first be paid in full, or payment thereof provided for in money in accordance with its terms, before any payment is made by set-off the Company on account of the principal or otherwise, in respect of principal of any premium or interest on the Notes before all Senior Indebtedness is paid Securities; and upon any such dissolution or provided for in fullwinding-up or liquidation or reorganization any payment by the Company, then and in such event such payment or distribution (other than a payment of assets of the Company of any kind or distribution character, whether in cash, property or securities, to which the form Holders of Permitted Junior Securities) shall the Securities or the Trustee would be received and held in trust entitled to receive from the Company, except for and the provisions of this Article, shall be paid over by the Company or delivered forthwith to the by any receiver, trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making such payment or distribution of assets distribution, or by the Holders of the Securities or by the Trustee under this Indenture if received by them or it, directly to the holders of Senior Indebtedness of the Company (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders, as calculated by the Company) or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, as their respective interests may appear, to the extent necessary to pay all such Senior Indebtedness in full, in money or money's worth, after giving effect to any concurrent payment or distribution to or for the holders of such Senior Indebtedness, before any payment or distribution is made to the Holders of the Securities or to the Trustee. In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, prohibited by the foregoing, shall be received by the Trustee before all Senior Indebtedness of the Company is paid in full, or provision is made for such payment in money in accordance with its terms, such payment or distribution shall be held in trust for the benefit of and shall be paid over or delivered to the holders of such Senior Indebtedness or their representative or representatives, or to the trustee or trustees under any indenture pursuant to which any instruments evidencing such Senior Indebtedness may have been issued, and their respective interests may appear, as calculated by the Company, for application to the payment of all Senior Indebtedness of the Company, as the case may be, remaining unpaid to the extent necessary to pay such Senior Indebtedness in full in money in accordance with its terms, after giving effect to any concurrent payment or distribution to or for the benefit of the holders of such Senior Indebtedness. For purposes of this Article only, the words "cash, property or securities" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other Corporation provided for by a plan of reorganization or readjustment which are subordinated in right of payment to all Senior Indebtedness which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided in this Article. 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 saleconveyance or transfer of its properties and assets as, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties as, an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshaling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionSection if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer such properties and assets as, or substantially as, an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article Eight.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Upon any payment or distribution of Properties assets of the Company any Guarantor of any kind or character, whether in cash, property or securities, by setto creditors upon any liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or marshalling of assets of any Guarantor or in a bankruptcy, reorganization, insolvency, receivership or other similar proceeding relating to any Guarantor or its property, whether voluntary or involuntary, all Obligations due or to become due upon all Guarantor Senior Indebtedness shall first be paid in full in cash or Cash Equivalents, or such payment duly provided for to the satisfaction of the holders of the Guarantor Senior Indebtedness, before any payment or distribution of any kind or character is made on account of any Obligations of a Guarantor on the Guarantees, or for the acquisition of any of the Securities for cash or property or otherwise. Upon any such dissolution, winding-up, liquidation, reorganization, receivership or similar proceeding, any payment, or distribution of assets of any Guarantor of any kind or character, whether in respect cash, property or securities, to which the Holders of principal the Guarantees or the Trustee under this Indenture would be entitled, except for the provisions hereof, shall be paid by the Guarantors or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders of the Guarantees or interest by the Trustee under this Indenture if received by them, directly to the holders of Guarantor Senior Indebtedness (pro rata to such holders on the Notes before all basis of the respective amounts of Guarantor Senior Indebtedness held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Guarantor Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Guarantor Senior Indebtedness remaining unpaid until all such Guarantor Senior Indebtedness has been paid in full in cash or Cash Equivalents after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of Guarantor Senior Indebtedness.
(b) To the extent any payment of Guarantor Senior Indebtedness (whether by or on behalf of a Guarantor, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or provided for other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in fullbankruptcy, then liquidating trustee, agent or other similar Person, the Guarantor Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of a Guarantor of any kind or character, whether in such event cash, property or securities, shall be received by any Holder when such payment or distribution (other than a is prohibited by Section 12.03(a), such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Guarantor Senior Indebtedness (pro rata to such holders on the basis of the respective amount of Guarantor Senior Indebtedness held by such holders) or their respective Representatives, or to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.or
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. (a) Upon any distribution to creditors of Properties the Company in a liquidation or dissolution of the Company or payment on behalf 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 with respect to the Notes in the event assets and liabilities of any Insolvency or Liquidation Proceeding with respect to the Company:
, (a1) the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or Cash Equivalents of all Obligations due in respect of such Senior Indebtedness (including interest after the commencement of any such proceeding, whether or not allowable as a claim in any such proceeding, at the rate specified in the applicable Senior Indebtedness, or provision must be made for such payment, ) before the Holders of the Notes are Securities shall be entitled to receive any direct payment with respect to the Subordinated Note Obligations under the Securities, and (2) until all Obligations with respect to Senior Indebtedness are paid in full in cash or indirect payment or Cash Equivalents, any distribution to which the Holders of any kind or characterSecurities would be entitled shall be made to holders of Senior Indebtedness. However, whether in cash, property or securities (other than Holders of Securities may receive and retain Permitted Junior Securities) on account of principal of or interest on Securities and payments made from the Notes or on account of the purchase or redemption or other acquisition of Notes; anddefeasance trust described in Section 9.04.
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in In the event that, notwithstanding the foregoing provisions of this Sectionprovision prohibiting such payment or distribution, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets or securities of the Company of any kind or character, whether in cash, property or securities, shall be received by set-off the Trustee or otherwise, in respect any Holder of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event Securities at a time when such payment or distribution (other than a is prohibited by Section 8.03(a) and before all obligations in respect of Senior Indebtedness are paid in full in cash or Cash Equivalents, or payment provided for, such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Senior Indebtedness (PRO RATA to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their respective representatives, or to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, or trustees or agent or other Person making payment or distribution agents under any indenture pursuant to which any of assets of the Companysuch Senior Indebtedness may have been issued, as their respective interests may appear, for application to the extent necessary to pay all payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, full in cash after giving effect to any prior or concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Senior Indebtedness. The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the liquidation or dissolution of the Company following the saleconveyance or transfer of its property as an entirety, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties as an entirety, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight hereof Five shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection 8.03 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Five.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. (a) Upon any distribution to creditors of Properties the Company in a liquidation or dissolution of the Company or payment on behalf 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 with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) 's assets and liabilities, the holders of Senior Indebtedness shall will be entitled to receive payment in full in cash or Marketable Securities of all Obligations due in respect of such Senior Indebtedness (including interest after the commencement of any such proceeding at the rate specified in the applicable Senior Indebtedness, or provision must be made for such payment, ) before the Holders holders of the Notes are Securities will be entitled to receive any direct payment with respect to the Securities, and until all Obligations with respect to Senior Indebtedness are paid in full in cash or indirect payment or Marketable Securities, any distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf holders of the Holders, Securities would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly made to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the (except that holders of such Senior Indebtedness; andSecurities may receive Permitted Junior Securities and payments made from the defeasance trust described under Section 9.04).
(cb) in In the event that, notwithstanding the foregoing provisions of this Sectionprovision prohibiting such payment or distribution, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets or securities of the Company of any kind or character, whether in cash, property or securities, shall be received by set-off the Trustee or otherwise, in respect any holder of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event Securities at a time when such payment or distribution (other than a is prohibited by Section 8.03(a) and before all obligations in respect of Senior Indebtedness are paid in full in cash or Marketable Securities, or payment provided for, such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their respective representatives, or to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, or trustees or agent or other Person making payment or distribution agents under any indenture pursuant to which any of assets of the Companysuch Senior Indebtedness may have been issued, as their respective interests may appear, for application to the extent necessary to pay all payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, full in cash or Marketable Securities after giving effect to any prior or concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Senior Indebtedness. The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the liquidation or dissolution of the Company following the saleconveyance or transfer of its property as an entirety, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties as an entirety, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight hereof Five shall not be deemed an Insolvency a dissolution, winding- up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection 8.03 if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article Five.
Appears in 1 contract
Samples: Indenture (Carson Products Co)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in In the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to Kingsway America, its creditors or its property, (b) any proceeding for the liquidation, dissolution, or other winding up of Kingsway America, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings, (c) any assignment by Kingsway America for the benefit of creditors or (d) any other marshaling of the assets of Kingsway America (each such event, if any, herein sometimes referred to as a "Proceeding"), then the holders of Senior Indebtedness Debt shall be entitled to receive payment in full of all amounts payable in respect of such Senior IndebtednessDebt, or provision must shall be made for such paymentpayment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, before the Holders holder of the Notes are this Subordinated Note is entitled to receive or retain any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) securities, on account of principal of or interest on the Notes any Subordinated Note Obligations or on account of the purchase or redemption or other acquisition of Notes; and
(b) this Subordinated Note by Kingsway America or any direct or indirect payment or distribution Subsidiary of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, Kingsway America and to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to that end the holders of Senior Indebtedness or their representative or representatives or Debt shall be entitled to receive, for application to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issuedpayment thereof, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off which may be payable or otherwise, deliverable in respect of principal this Subordinated Note in any such Proceeding. In the event that, notwithstanding the foregoing provisions of this Section 2.02, Kingsway America or interest on any Subsidiary of Kingsway America shall make any payment or distribution in payment of any Subordinated Note Obligations hereunder to the Notes holder of this Subordinated Note before all Senior Indebtedness Debt is paid in full or payment thereof is provided for in fullcash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of Kingsway America for application to the Companypayment of all Senior Debt remaining unpaid, to the extent necessary to pay all Senior Indebtedness Debt in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessDebt. For purposes of this Article only, the words "any payment or distribution of any kind or character, whether in cash, property or securities" shall not be deemed to include shares of stock of Kingsway America as reorganized or readjusted, or securities of Kingsway America or any other corporation provided for by a plan of reorganization or readjustment which securities are subordinated in right of payment to all then outstanding Senior Debt to substantially the same extent as this Subordinated Note is so subordinated as provided herein. The consolidation of the Company Kingsway America with, or the merger of the Company Kingsway America into, another Person or the liquidation or dissolution of the Company Kingsway America following the sale, assignment, conveyance, transfer, lease or other disposition sale of all or substantially all of its Properties properties and assets as an entirety to another Person or group the liquidation or dissolution of Affiliated Persons pursuant to, Kingsway America following the sale of all or substantially all of its properties and in compliance with, assets as an entirety to another Person upon the terms and conditions set forth in Article Eight hereof Section 11.02 of the Indenture applicable to the Guarantor shall not be deemed an Insolvency or Liquidation a Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.
Appears in 1 contract
Samples: Junior Subordinated Note (Kingsway Financial Services Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon In the event of (a) any distribution of Properties of insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or payment on behalf to its creditors, as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company with respect to Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the Notes in the event benefit of creditors or any Insolvency or Liquidation Proceeding with respect to other marshaling of assets and liabilities of the Company:
(a) , then and in any such event the holders of Senior Indebtedness shall be entitled to receive payment in full in cash or other payment satisfactory to the holders of such Senior Indebtedness of all amounts due or to become due on or in respect of all Senior Indebtedness, or provision must shall be made for such paymentpayment in cash or other payment satisfactory to the holders of Senior Indebtedness, before the Holders of the Notes Securities are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal Principal Amount, Restated Principal Amount, Issue Price, accrued Original Issue Discount, Redemption Price, cash in respect of or Put Price, Liquidated Damages, Change in Control Purchase Price and cash interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or characterSecurities, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, and to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to that end the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, shall be entitled to receive from the liquidating trustee or agent or other person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution remaining unpaid, for application to the holders of such Senior Indebtedness; and
(c) in the event thatpayment thereof, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off which may be payable or otherwise, deliverable in respect of principal the Securities in any such case, proceeding, dissolution, liquidation or other winding up or event. For purposes of this Article XII only, the words "cash, property or interest on securities" shall not be deemed to include shares of capital stock of the Notes before Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which in either case are subordinated in right of payment to all Senior Indebtedness is paid which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Securities are so subordinated as provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtednessthis Article XII. 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 sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or its properties and assets substantially all its Properties as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof VIII shall not be deemed an Insolvency a dissolution, winding up, liquidation, reorganization, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshaling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionSection 12.2 if the Person formed by such consolidation or into which the Company is merged or which acquires by conveyance or transfer such properties and assets substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions set forth in Article VIII.
Appears in 1 contract
Samples: Indenture (Anntaylor Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon In the event of any payment or distribution of Properties assets of the Company for the benefit of creditors, marshaling of assets or any bankruptcy, insolvency or similar proceedings of the Company (each such event herein sometimes referred to as a "Proceeding"), then except in connection with the consolidation or merger of the Company or its liquidation or dissolution following the conveyance, transfer or lease of its properties and assets substantially as an entirety, upon the terms and conditions described in Article Eight, the holders of Senior Indebtedness shall first be entitled to receive payment in full, in cash or cash equivalents, of all amounts due or to become due on behalf or in respect of such Senior Indebtedness before the Holders of any Security of such series or of any coupon appertaining thereto are entitled to receive any payment of principal of , and premium, if any, or interest on the Securities or on account of the purchase or redemption or other acquisition of Securities by the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) "Securities Payment"), and the holders of Senior Indebtedness shall be entitled to receive receive, for application to the payment in full of such Senior Indebtednessthereof, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of which may be payable or interest on the Notes or on account deliverable in respect of the purchase or redemption or other acquisition of Notes; and
(b) Securities in any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in Proceeding. In the event that, notwithstanding the foregoing provisions of this SectionSection 1502, the Trustee or the Holder of any Note Security shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all the Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution distribution, except for amounts subject to the claim granted to the Trustee in the form of Permitted Junior Securities) Section 606 hereof, shall be received and held in trust for the holders of Senior Indebtedness and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent bankruptcy or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all the Senior Indebtedness remaining unpaid, to the extent necessary to pay all the Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of the Senior Indebtedness. The consolidation For purposes of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance withthis Article Fifteen only, the terms words "any payment or distribution of any kind or character" and conditions set forth in Article Eight hereof "cash, property or securities" shall not be deemed an Insolvency to include a payment or Liquidation Proceeding (requiring distribution of equity or subordinated securities of the repayment Company provided for by a plan of reorganization or readjustment or of any other corporation provided for by such plan of reorganization or readjustment that, in the case of subordinated securities, are subordinated in right of payment to all then outstanding Senior Indebtedness to at least the same extent as the Securities, as the case may be, are so subordinated as provided in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionArticle Fifteen.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. (a) Upon any distribution to creditors of Properties the Company in a total or partial liquidation, winding-up, reorganization, judicial management or dissolution of the Company or payment on behalf in a voluntary or involuntary bankruptcy, reorganization, insolvency, receivership, judicial management or similar proceeding relating to the Company or its property, an assignment for the benefit of creditors or any marshalling of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) 's assets and liabilities, the holders of Senior Indebtedness shall Debt will be entitled to receive payment in full in cash of all Obligations due in respect of such Senior IndebtednessDebt (including interest (and any Additional Interest, or provision must be made for if any) after the commencement of any such payment, proceeding at the rate specified in the applicable Senior Debt) before the Holders of the Notes are Securities will be entitled to receive any direct or indirect payment or distribution of any kind or characterwith respect to the Securities, whether and until all Obligations with respect to Senior Debt are paid in full in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Securities would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly made to the holders of Senior Indebtedness Debt (except that Holders of the Securities may receive Permitted Junior Securities and payments made from the trust described in Article 10).
(b) To the extent any payment of Senior Debt (whether by or their representative on behalf of the Company, as proceeds of security or representatives enforcement of any right of setoff or otherwise) is declared to the be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or trustees other similar Person under any indenture under which any instruments evidencing any of bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such Senior Indebtedness may have been issuedpayment is recovered by, ratably according to the aggregate amounts remaining unpaid on account of or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person, the Senior Indebtedness held Debt or represented by each, part thereof originally intended to the extent necessary be satisfied shall be deemed to make be reinstated and outstanding as if such payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; andhad not occurred.
(c) in In the event that, notwithstanding the foregoing provisions of this Sectionforegoing, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, shall be received by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event any Holder when such payment or distribution (other than a is prohibited by Section 5.3(a), such payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for the benefit of, and shall be paid over or delivered forthwith to, the holders of Senior Debt (pro rata to such holders on the basis of the respective amount of Senior Debt held by such holders) or their Representatives, or to the trustee in bankruptcyor trustees under any indenture pursuant to which any of such Senior Debt may have been issued, receiveras their respective interests may appear, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, for application to the extent necessary to pay payment of Senior Debt remaining unpaid until all such Senior Indebtedness Debt has been paid in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of such Senior Indebtedness. Debt.
(d) The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the liquidation liquidation, judicial management or dissolution of the Company following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties assets, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight 7 hereof shall not be deemed an Insolvency a dissolution, winding-up, liquidation, judicial management or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection if, in the event the Company is not the surviving corporation, such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, assume the Company's obligations hereunder in accordance with Article 7 hereof.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon Until all Senior Secured Debt shall have been paid in full, exchanged for Notes or otherwise retired, in the event of:
(a) the occurrence of an Event of Default (as such term is defined in the Senior Secured Debt) and continuance thereof beyond any distribution of Properties grace period provided in the Senior Secured Debt;
(b) any acceleration of the Company or payment on behalf maturity of any other Indebtedness of the Company Company, or
(c) the institution of any liquidation, dissolution, bankruptcy, insolvency or similar proceeding relating to the Company, its property, or its creditors as such, the Holders of the Notes shall not be entitled to receive and, by execution and delivery of this Indenture the Holders of the Notes agree not to accept, any payment of principal or interest until all amounts owing in respect of the Senior Secured Debt shall have been paid in full; and from and after the happening of any event described in clause (c) of this Section 10.02, all payments and distributions of any kind or character (whether in cash, securities or property) which, except for the provisions hereof, would have been payable or distributable to or for the benefit of the holders of the Notes, shall be made to and for the benefit of the Holders of the Senior Secured Debt (who shall be entitled to make all necessary claims therefore) in accordance with the priorities of payment set forth herein until all Senior Secured Debt shall have been paid in full. In the event that any payment or distribution is made with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders violation of the Notes are entitled to receive terms hereof, any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event receiving such payment or distribution shall (other than a payment or distribution in and, by acceptance of the form of Permitted Junior SecuritiesExchange Notes, agrees to) shall be received and held hold it in trust for the benefit of, and shall be paid over or delivered forthwith to the trustee in bankruptcyremit it to, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of the Senior Indebtedness. The consolidation Secured Debt in accordance with the priorities of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, payment set forth herein and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionSecurity Agreement.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive Upon any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties assets of the Company of any kind or charactercharacter , whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by setto creditors upon any liquidation, dissolution, winding-off or otherwiseup, to which the Holders or the Trusteereorganization, on behalf of the Holders, would be entitled but assignment for the provisions benefit of this Article shall be paid by creditors or marshaling of assets of the Company or by any liquidating trustee or agent in a bankruptcy, reorganization, insolvency, receivership or other Person making such payment similar proceeding relating to the Company or distributionits property, whether a trustee in bankruptcyvoluntary or involuntary, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives all Obligations due or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of become due upon all Senior Indebtedness after giving effect to any concurrent payment shall first be paid in full in cash or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received Cash Equivalents before any payment or distribution of Properties any kind or character (other than a payment in the form of Permitted Junior Securities) is made on account of any Obligations on or with respect to the Securities, or for the acquisition of any of the Securities for cash or property or otherwise; provided, however, that no payment on the Guarantee shall constitute payment on behalf of the Company for purposes of this Section 11.03(a). Upon any such dissolution, winding-up, liquidation, reorganization, receivership or similar proceeding, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, by set-off to which the Holders of the Securities or otherwisethe Trustee under this Indenture would be entitled, in respect of principal of or interest on except for the Notes before all Senior Indebtedness is paid or provided for in fullprovisions hereof, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over by the Company or delivered forthwith to the by any receiver, trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making such payment or distribution distribution, or by the Holders or by the Trustee under this Indenture if received by them, directly to the holders of assets Senior Indebtedness (pro rata to such holders on the basis of the Companyrespective amounts of Senior Indebtedness held by such holders) or their respective Representatives, or to the extent necessary trustee or trustees under any indenture pursuant to pay all which any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, full in cash or Cash Equivalents after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or for the holders of Senior Indebtedness.
(b) To the extent any payment of Senior Indebtedness (whether by or on behalf of the Company, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then, if such payment is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payment had not occurred. It is further agreed that any dimunition (whether pursuant to court decree or otherwise, including, without limitation, for any of the reasons described in the preceeding sentence) of the Company's obligation to make any distribution or payment pursuant to any Senior Indebtedness, except to the extent such diminution occurs by reason of the repayment (which has not been disgorged or returned) of such Senior Indebtedness in cash or Cash Equivalents, shall have no force or effect for purposes of the subordination provisions contained in this Article Eleven, with any turnover of payments as otherwise calculated pursuant to this Article Eleven to be made as if no such diminution has occurred.
(c) In the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, shall be received by the Trustee or any Holder when such payment or distribution is prohibited by Section 11.03(a), such payment or distribution shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amount of Senior Indebtedness held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full in cash or Cash Equivalents, after giving effect to any concurrent payment, distribution or provision therefor to or for the holders of such Senior Indebtedness.
(d) The consolidation of the Company with, or the merger of the Company with or into, another Person corporation or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease conveyance or other disposition transfer of all or substantially all of its Properties assets, to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth provided in Article Eight hereof Five and as long as permitted under the terms of the Senior Indebtedness shall not be deemed an Insolvency a dissolution, winding-up, liquidation or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) reorganization for the purposes of this SectionSection if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, assume the Company's obligations hereunder in accordance with Article Five.
Appears in 1 contract
Samples: Indenture (Aearo CO I)
Payment Over of Proceeds Upon Dissolution, Etc. (a) Upon any distribution of Properties the Company's assets in connection with any dissolution, winding up, liquidation or reorganization of the Company Company, whether voluntary or payment involuntary, in any proceeding under any Bankruptcy Law (each such event, if any, herein sometimes referred to as a "Proceeding"), or upon an assignment for the benefit of creditors or otherwise: (i) all Senior Indebtedness (including all interest accruing on behalf or after the filing of any petition in bankruptcy relating to the Company with respect at the relevant contractual rate, whether or not such claim for post-petition interest is allowed in such Proceeding) must be paid in full in cash or cash equivalents or otherwise in a manner satisfactory to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of such Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes Securities are entitled to receive any direct payments or indirect distributions of any kind or character; and (ii) any payment or distribution of the Company's assets of any kind or character, whether in cash, property securities or securities other property, which would otherwise (other than Permitted Junior Securitiesbut for these subordination provisions) on account of principal of be payable or interest on the Notes or on account deliverable in respect of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article Securities shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, delivered directly to the holders of such Senior Indebtedness (or their representative or representatives trustee) in accordance with the priorities then existing among such holders until all Senior Indebtedness shall have been paid in full in cash or cash equivalents or otherwise in a manner satisfactory to the trustee or trustees under any indenture under which any instruments evidencing any holders of such Senior Indebtedness may have been issued, ratably according before any payment or distribution is made to the aggregate amounts remaining unpaid on account Holders of the Senior Indebtedness held Securities.
(b) In the event that notwithstanding the subordination provisions set forth herein, any payment or represented by each, distribution of assets of any kind or character is made on the Securities at a time when the respective payment is not permitted to be made as a result of the extent necessary to make payment subordination provisions described in full of Section 10.2(a) and before all Senior Indebtedness after giving effect is paid in full in cash or cash equivalents or otherwise in a manner satisfactory to any concurrent the holders of such Senior Indebtedness, the Trustee or the Holders of the Securities receiving such payment will be required to pay over such payment or distribution to the holders of such Senior Indebtedness; andIndebtedness and shall hold such amounts in trust for the benefit of the holders of the Senior Indebtedness until such amounts are paid over.
(c) in For the event that, notwithstanding the foregoing provisions purposes of this SectionArticle 10 only, the Trustee or the Holder of any Note shall have received words "any payment or distribution of Properties of the Company of any kind or character" shall not be deemed to include shares of stock of the Company as reorganized or readjusted, whether or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment which securities are subordinated in cash, property or securities, by set-off or otherwise, in respect right of principal of or interest on the Notes before payment to all then outstanding Senior Indebtedness is paid or to substantially the same extent as the Securities are so subordinated as provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtednessthis Article 10. 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 sale, assignment, conveyance, transfer, lease or other disposition sale of all or substantially all of its Properties properties and assets as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight hereof 4 shall not be deemed an Insolvency or Liquidation a Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionSection 10.2 if the Person formed by such consolidation or into which the Company is merged or the Person which acquires by sale such properties and assets as an entirety, as the case may be, shall, as a part of such consolidation, merger, or sale comply with the conditions set forth in Article 4.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon In the event of (a) any distribution of Properties of insolvency or 118 bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relating to the Company or payment on behalf to its assets, or (b) any liquidation, dissolution or other winding-up of the Company with respect to Company, whether voluntary or involuntary, or (c) any assignment for the Notes in the event benefit of any Insolvency creditors or Liquidation Proceeding with respect to other marshalling of assets or liabilities of the Company, then and in any such event:
(a1) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, in cash or cash equivalents or provision must be acceptable to the requisite holders of Senior Indebtedness made for such paymentpayments, of all amounts due on or in respect of Senior Indebtedness before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or characterdistribution, whether in cash, property or securities (other than excluding Permitted Junior Securities) on account of principal Senior Subordinated Note Obligations or for the acquisition of or interest on the Notes or on account any of the purchase or redemption or other acquisition of Notes; and
(b2) any direct or indirect payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of excluding Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Trustee would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or cash equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c3) in the event that, notwithstanding the foregoing provisions of this SectionSection 11.02, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties properties or assets of the Company of any kind or character, whether in cash, property or securities, by set-set off or otherwise, otherwise in respect of principal of or interest on the Notes any Senior Subordinated Note Obligations before all Senior 119 Indebtedness is paid or provided for in fullfull in cash or cash equivalents, then and in such event such payment or distribution (other than a payment or distribution in the form of excluding Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in fullfull in cash or cash equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior IndebtednessIndebt- edness. The consolidation of the Company with, or the merger of the Company with or into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or its properties and assets substantially all its Properties as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, upon the terms and conditions set forth in Article Eight Five hereof shall not be deemed an Insolvency a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshalling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionArticle if the Person formed by such consolidation or the surviving entity of such merger 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 a part of such consolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article Five.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in In the event of any an Insolvency or Liquidation Proceeding with respect to the Company:
(ai) the holders of all Senior Indebtedness shall be entitled to receive payment in full in cash or Cash Equivalents of all Senior Indebtedness (including interest after the commencement of such proceeding at the rate specified in the applicable Senior Indebtedness, whether or provision must be made not a claim for such payment, interest would be allowed in such proceeding) before the Holders of the Notes Securities are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than excluding Permitted Junior SecuritiesSecurities of the Company) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; andNote Obligations;
(bii) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company), by set-set- off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Trustee would be entitled but for the provisions of this Article XIII shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or Cash Equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and;
(ciii) in the event that, notwithstanding the foregoing provisions of this SectionSection 13.2, the Trustee or the Holder of any Note Security shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-set off or otherwise, in respect of principal of or interest on the Notes any Note Obligations before all Senior Indebtedness is paid or provided for in fullfull in cash or Cash Equivalents, then and in such event such payment or distribution (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness;
(iv) to the extent any payment of or distribution in respect of Senior Indebtedness (whether by or on behalf of the Company or any Subsidiary Guarantor, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance, fraudulent transfer or similar law, then if such payment or distribution is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payments had not occurred; and
(v) to the extent that the obligation to repay any Senior Indebtedness is declared to be fraudulent, invalid or otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent conveyance, fraudulent transfer or similar law, then the obligation so declared fraudulent, invalid or otherwise set aside (and all other amounts that would come due with respect thereto had such obligation not been so affected) shall be deemed to be reinstated and outstanding as Senior Indebtedness for all purposes hereof as if such declaration, invalidity or setting aside had not occurred. The consolidation of the Company with, or the merger of the Company with or into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or substantially all its Properties substantially as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth in Article Eight VII hereof shall not be deemed an Insolvency a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshaling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionArticle if the corporation formed by such consolidation or the surviving entity of such merger or the corporation which acquires by conveyance, transfer or lease such Properties substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article VII hereof to the extent applicable.
Appears in 1 contract
Samples: Indenture (Pogo Producing Co)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution Following the occurrence of Properties of the Company or payment on behalf of the Company with respect to the Notes a Consolidation Event, in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or to its creditors, as such, or to its assets, whether under Bankruptcy Law or otherwise, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bank ruptcy, or (c) any assignment for the benefit of creditors or any other marshaling of assets and liabilities of the Company, then and in any such event the holders of Senior Indebtedness shall be entitled to indefeasibly receive payment in full and in cash of such all amounts due or to become due on or in respect of all Senior Indebtedness, or provision must be made for such payment, Indebtedness before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on or any other amounts owing under the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, and to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to that end the holders of Senior Indebtedness or their representative or representatives or shall be entitled to receive, for application to the trustee or trustees under payment thereof, any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in Securities Payment. In the event that, notwithstanding the foregoing provisions of this SectionSection 10.2, the Trustee or the any Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes Securities Payment before all Senior Indebtedness is indefeasibly paid or provided for in fullfull and in cash, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to indefeasibly pay all Senior Indebtedness in fullfull and in cash, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation For purposes of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance withthis Article X only, the terms and conditions set forth in Article Eight hereof words "Securities Payment" shall not be deemed an Insolvency or Liquidation Proceeding (requiring to include Reorganization Securities, and the repayment of Holders shall in all Senior Indebtedness in full as a prerequisite events be entitled to receive and retain any payments being made Reorganization Securities notwithstanding anything to the Holders) for the purposes of this Sectioncontrary contained herein.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by setto creditors upon any liquidation, dissolution, winding-off up, reorganization, assignment for the benefit of creditors or otherwisemarshalling of assets of the Company or in a bankruptcy, in respect of principal of reorganization, insolvency, receivership or interest on other similar proceeding relating to the Notes before Company or its property, whether voluntary or involuntary, all Obligations due or to become due upon all Senior Indebtedness is shall first be paid in full in cash or Cash Equivalents, or such payment duly provided for in fullto the satisfaction of the holders of the Senior Indebtedness, then and in such event such before any payment or distribution (other than a payment of any kind or distribution in character is made on account of any Obligations on the form Securities, or for the acquisition of Permitted Junior Securities) shall be received and held in trust any of the Securities for and shall be paid over cash or delivered forthwith to the trustee in bankruptcyproperty or otherwise. Upon any such dissolution, receiverwinding-up, liquidating trusteeliquidation, custodianreorganization, assigneereceivership or similar proceeding, agent or other Person making any payment or distribution of assets of the CompanyCompany of any kind or character, whether in cash, property or securities, to which the extent necessary Holders of the Securities or the Trustee under this Indenture would be entitled (other than any payments of fees and expenses of the Trustee and any indemnity made under Section 7.07), except for the provisions hereof, shall be paid by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such payment or distribution, or by the Holders of the Securities or by the Trustee under this Indenture if received by them, directly to pay all the holders of Senior Indebtedness (pro rata to such holders on the basis of the respective amounts of Senior Indebtedness held by such holders) or their respective Representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Indebtedness may have been issued, as their respective interests may appear, for application to the payment of Senior Indebtedness remaining unpaid until all such Senior Indebtedness has been paid in full, full in cash or Cash Equivalents after giving effect to any concurrent payment payment, distribution or distribution provision therefor to or 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 sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Section.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution Following the occurrence of Properties of the Company or payment on behalf of the Company with respect to the Notes a Consolidation Event, in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or to its creditors, as such, or to its assets, whether under Bankruptcy Law or otherwise, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshaling of assets and liabilities of the Company, then and in any such event the holders of Senior Indebtedness shall be entitled to indefeasibly receive payment in full and in cash of such all amounts due or to become due on or in respect of all Senior Indebtedness, or provision must be made for such payment, Indebtedness before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on or any other amounts owing under the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, and to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to that end the holders of Senior Indebtedness or their representative or representatives or shall be entitled to receive, for application to the trustee or trustees under payment thereof, any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in Securities Payment. In the event that, notwithstanding the foregoing provisions of this SectionSection 11.2, the Trustee or the any Holder of any Note shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes Securities Payment before all Senior Indebtedness is indefeasibly paid or provided for in fullfull and in cash, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to indefeasibly pay all Senior Indebtedness in fullfull and in cash, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation For purposes of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance withthis Article XI only, the terms and conditions set forth in Article Eight hereof words "Securities Payment" shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) for the purposes of this Sectioninclude Reorganization Securities.
Appears in 1 contract
Samples: Indenture (Reeves Inc)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in In the event of any an Insolvency or Liquidation Proceeding with respect to the Company:
(ai) the holders of all Senior Indebtedness shall be entitled to receive payment in full in cash or Cash Equivalents of all Senior Indebtedness (including interest after the commencement of such proceeding at the rate specified in the applicable Senior Indebtedness, whether or provision must be made not a claim for such payment, interest would be allowed in such proceeding) before the Holders of the Notes Securities are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than excluding Permitted Junior SecuritiesSecurities of the Company) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; andNote Obligations;
(bii) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of the Company), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, Trustee would be entitled but for the provisions of this Article XIII shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full in cash or Cash Equivalents of all Senior Indebtedness remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and;
(ciii) in the event that, notwithstanding the foregoing provisions of this SectionSection 13.2, the Trustee or the Holder of any Note Security shall have received any payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities, by set-set off or otherwise, in respect of principal of or interest on the Notes any Note Obligations before all Senior Indebtedness is paid or provided for in fullfull in cash or Cash Equivalents, then and in such event such payment or distribution (other than a payment or distribution in the form of excluding Permitted Junior SecuritiesSecurities of 107 116 the Company) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person person making payment or distribution of assets of the CompanyCompany for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in fullfull in cash or Cash Equivalents, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness;
(iv) to the extent any payment of or distribution in respect of Senior Indebtedness (whether by or on behalf of the Company or any Subsidiary Guarantor, as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be fraudulent or preferential, set aside or required to be paid to any receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency, receivership, fraudulent conveyance, fraudulent transfer or similar law, then if such payment or distribution is recovered by, or paid over to, such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar person, the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be reinstated and outstanding as if such payments had not occurred; and
(v) to the extent that the obligation to repay any Senior Indebtedness is declared to be fraudulent, invalid or otherwise set aside under any bankruptcy, insolvency, receivership, fraudulent conveyance, fraudulent transfer or similar law, then the obligation so declared fraudulent, invalid or otherwise set aside (and all other amounts that would come due with respect thereto had such obligation not been so affected) shall be deemed to be reinstated and outstanding as Senior Indebtedness for all purposes hereof as if such declaration, invalidity or setting aside had not occurred. The consolidation of the Company with, or the merger of the Company with or into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, transfer or lease or other disposition of all or substantially all its Properties substantially as an entirety to another Person or group of Affiliated Persons pursuant to, and in compliance with, corporation upon the terms and conditions set forth in Article Eight VII hereof shall not be deemed an Insolvency a dissolution, winding-up, liquidation, reorganization, assignment for the benefit of creditors or Liquidation Proceeding (requiring marshaling of assets and liabilities of the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) Company for the purposes of this SectionArticle if the corporation formed by such consolidation or the surviving entity of such merger or the corporation which acquires by conveyance, transfer or lease such Properties substantially as an entirety, as the case may be, shall, as a part of such consolidation, merger, conveyance, transfer or lease, comply with the conditions set forth in such Article VII hereof to the extent applicable.
Appears in 1 contract
Samples: Indenture (Pogo Producing Co)
Payment Over of Proceeds Upon Dissolution, Etc. Upon (a) In the event of (x) any distribution of Properties insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition or other similar proceeding relative to the Company or its creditors or its property, (y) any proceeding for voluntary liquidation, dissolution or other winding up of the Company whether or payment on behalf not involving insolvency or bankruptcy proceedings, or (z) any assignment for the benefit of creditors or any marshaling of the Company with respect assets of the Company, then and in any such event,
(i) all Senior Indebtedness (including interest accruing on such Senior Indebtedness after the date of filing a petition or other action commencing any such proceeding to the Notes extent such interest is an allowed claim) shall first be paid in full, or have provision made for payment in full to the event reasonable satisfaction of the holder of any Insolvency or Liquidation Proceeding with respect to Senior Indebtedness, before the Company:
(a) the holders holder of Senior Indebtedness this Note shall be entitled to receive any payment in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of the principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; indebtedness evidenced by this Note, and
(bii) any direct or indirect payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, provided the rights of the holders of Senior Indebtedness are not altered by such reorganization or readjustment, the payment or distribution of which is subordinate, at least to the extent provided in this Article VIII with respect to this Note, to the form payment of Permitted Junior Securitiesall Senior Indebtedness at the time outstanding and to the payment of all securities issued in exchange therefor to the holders of Senior Indebtedness at the time outstanding), by set-off or otherwise, to which the Holders or the Trustee, on behalf holder of the Holders, this Note would be entitled but except for the provisions of this Article VIII, shall be paid by the Company or by any liquidating trustee or agent or other Person person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwiseother trustee or agent, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the principal of and premium, if any, and interest on, the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid and/or outstanding (as the case may be), after giving effect to any concurrent payment or distribution distribution, or provision therefor, to the holders of such Senior Indebtedness; and.
(b) No payments on account of principal of or interest on this Note shall be made unless full payment of amounts then due for principal of (including any sinking fund payment), premium, if any, and interest on all Senior Indebtedness has been made or otherwise duly provided for to the reasonable satisfaction of each holder of any Senior Indebtedness.
(c) In the event and during the continuation of any default or event of default in respect of any Senior Indebtedness or under any agreement under which any Senior Indebtedness was issued continuing beyond the period of grace, if any, specified in such agreement, then, unless and until such default shall have been cured or waived or shall have ceased to exist, no payment shall be made by the Company and no application of funds shall be made with respect to the principal of or interest on this Note.
(d) In the event that, notwithstanding the foregoing provisions of this Sectionforegoing, the Trustee or the Holder of any Note shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securitiessecurities (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment, provided that the rights of the holders of Senior Indebtedness are not altered by set-off such reorganization or otherwisereadjustment, the payment of which is subordinate, at least to the extent provided in this Article VIII with respect to this Note, to the payment of principal all Senior Indebtedness at the time outstanding and to the payment of all securities issued in exchange therefor to the holders of Senior Indebtedness at the time outstanding), shall be received by the holder of this Note during the continuance of any event specified in Sections 8.02(a), 8.02(b) or interest on the Notes 8.02(c) prohibiting such payment and before all Senior Indebtedness is paid in full or provided provision made for in fullits payment to the reasonable satisfaction of each holder of any Senior Indebtedness, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securitiessubject to Section 8.04) shall be received and held in trust for and shall be immediately paid by the holder hereof over to the holders of Senior Indebtedness (or delivered forthwith their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued), upon their written request remaining unpaid or unprovided for as provided in bankruptcythe foregoing subsection (ii) of Section 8.02(a), receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the Company, for application to the extent necessary to pay all payment of such Senior Indebtedness until all such Senior Indebtedness shall have been paid in full, after giving effect to any concurrent payment or distribution distribution, or provision therefor, to the holders of such Senior Indebtedness.
(e) Subject to the payment in full of all Senior Indebtedness and the irrevocable and complete termination of all commitments and obligations to issue or fund any Senior Indebtedness (and not before such time), the holder of this Note shall be subrogated equally and ratably with the holders of all other Notes to all rights of the holders of Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable to the Senior Indebtedness until the principal of and interest on this Note shall be paid in full; and, for purposes of such subrogation, no payments or distributions to the holders of Senior Indebtedness of cash, property or securities distributable or paid over to the holders of Senior Indebtedness under the provisions hereof to which the holder of this Note or other Notes would be entitled except for the provisions of this Article VIII shall, as between the Company, its creditors other than the holders of Senior Indebtedness. The consolidation , and the holder of this Note or of other Notes, be deemed to be a payment by the Company to or on account of the Company withSenior Indebtedness, or it being understood that the merger provisions of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, this Article VIII are and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness in full as a prerequisite to any payments being made to the Holders) are intended solely for the purposes of defining the relative rights of the holder of this SectionNote, the holders of other Notes and the holders of the Senior Indebtedness.
(f) Nothing contained in this Article VIII or elsewhere in this Note is intended to or shall impair, as between the Company, its creditors other than the holders of Senior Indebtedness (and the entities committed or obligated to issue or fund any Senior Indebtedness), and the holder of this Note, the obligation of the Company, which is absolute and unconditional, to pay to the holder hereof the principal of and interest hereon, as and when the same shall become due and payable in accordance with the terms hereof, or is intended to or shall affect the relative rights of the holder hereof and other creditors of the Company other than the holders of the Senior Indebtedness (and the entities committed or obligated to issue or fund any Senior Indebtedness), nor shall anything in this Note prevent the holder from exercising all remedies otherwise permitted by applicable law upon the happening of any Event of Default under this Note, subject to the rights, if any, under this Article VIII of the holders of Senior Indebtedness (and the entities committed or obligated to issue or fund any Senior Indebtedness) in respect of cash, property or securities of the Company received upon the exercise of any such remedy.
(g) Without notice to or the consent of the holder of this Note, the holders of the Senior Indebtedness or the entities committed or obligated to issue or fund any Senior Indebtedness may at any time and from time to time, without impairing or releasing the subordination herein made, change the manner, place or terms of payment, or change or extend the time of payment of or renew or alter the Senior Indebtedness or the commitment or obligation to issue or fund any Senior Indebtedness, or amend or supplement in any manner any instrument evidencing the Senior Indebtedness or the commitment or obligation to issue or fund any Senior Indebtedness, any agreement pursuant to which the Senior Indebtedness was issued or incurred or any instrument securing or relating to the Senior Indebtedness or the commitment or obligation to issue or fund any Senior Indebtedness; release any person liable in any manner for the payment or collection of the Senior Indebtedness; exercise or refrain from exercising any rights in respect of the Senior Indebtedness against the Company or any other person; apply any money or other property paid by any person or released in any manner to the Senior Indebtedness; accept or release any security for the Senior Indebtedness; sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise securing Senior Indebtedness; or exercise or refrain from exercising any rights against the Company or any other person; all without thereby impairing in any respect the rights of such holders of Senior Indebtedness as provided in this Article VIII.
Appears in 1 contract
Samples: Agreement and Plan of Exchange (Advanced Communications Group Inc/De/)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in (a) In the event of any Insolvency or Liquidation Proceeding Proceeding, (1) all Senior Indebtedness under or with respect to the Company:
Credit Agreement and (a2) the holders all amounts payable in respect of any other Senior Indebtedness shall first be entitled to receive payment paid in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders holder of the Notes are this Security is entitled to receive any direct or indirect payment or distribution of any cash, property or securities (excluding Reorganization Securities) on account of principal of or interest on this Security.
(b) The holders of Senior Indebtedness or their respective Representatives shall be entitled to receive directly, for application to the payment thereof (to the extent necessary to pay all such Senior Indebtedness in full after giving effect to any substantially concurrent payment or distribution to the holders of such Senior Indebtedness), in the following order of priority, any payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) excluding Reorganization Securities but including any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcyexcept Reorganization Securities, a receiver which may be payable or liquidating trustee or otherwise, directly deliverable by reason of the payment of any other indebtedness of the Company being subordinated to the holders payment of the Securities) which may be payable or deliverable in respect of the Securities in any such Insolvency or Liquidation Proceeding: first, so long as any Senior Indebtedness under or their representative or representatives or with respect to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issuedCredit Agreement is outstanding, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior IndebtednessIndebtedness (pro rata on the basis of the respective amounts of such Senior Indebtedness held by them) or their Representatives; and, second, if and only if all Senior Indebtedness under or with respect to the Credit Agreement is paid in full, to the holders of any other Senior Indebtedness (pro rata on the basis of the respective amounts of such other Senior Indebtedness held by them) or their respective Representatives.
(c) in In the event that, notwithstanding the foregoing provisions of this SectionSection 3.2, the Trustee or the Holder holder of any Note Security shall have received any payment from or distribution of Properties assets of the Company or the estate created by the commencement of any such Insolvency or Liquidation Proceeding, of any kind or charactercharacter in respect of this Security, whether in cash, property or securitiessecurities (excluding Reorganization Securities but including any payment or distribution, except Reorganization Securities, which may be payable or deliverable by set-off or otherwise, in respect reason of principal the payment of or interest on any other indebtedness of the Notes Company being subordinated to the payment of the Securities) before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith over, in the following order of priority, to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets holders of the CompanySenior Indebtedness remaining unpaid or their respective Representatives, to the extent necessary to pay all such Senior Indebtedness in full, full after giving effect to any substantially concurrent payment or distribution to or for the holders of such Senior Indebtedness. The consolidation , for application to the payment in full of such Senior Indebtedness: first, so long as any Senior Indebtedness under or with respect to the Credit Agreement is outstanding, to the holders of such Senior Indebtedness (pro rata on the basis of the Company withrespective amounts of such Senior Indebtedness held by them) (or their respective Representatives) and, or the merger of the Company intosecond, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, if and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of only if all Senior Indebtedness in full as a prerequisite to any payments being made under or with respect to the HoldersCredit Agreement is paid in full, to the holders of any other Senior Indebtedness (pro rata on the basis of the respective amounts of such other Senior Indebtedness held by them) for the purposes of this Sectionor their respective Representatives.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of Upon a Dissolution Event, then all principal, premium, if any, and interest due or to become due on all Senior Indebtedness shall must be entitled to receive payment paid in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders of the Notes Noteholders are entitled to receive or retain any direct or indirect payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; andrespect thereof.
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in In the event that, notwithstanding the foregoing provisions of this SectionArticle, the Trustee or the Holder of any Note Noteholder shall have received in a Dissolution Event, any payment or distribution of Properties assets of the Company Issuer of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid in full or payment thereof provided for in fullfor, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyIssuer for application to the payment of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation Any taxes that have been withheld or deducted from any payment or distribution in respect of the Company withNotes, or any taxes that ought to have been withheld or deducted from any such payment or distribution that have been remitted to the merger of relevant taxing authority, shall not be considered to be an amount that the Company into, another Person Trustee or the liquidation or dissolution Noteholder receives for purposes of the Company following the sale, assignment, conveyance, transfer, lease or other disposition this Article 12.
(c) For purposes of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance withthis Article, the terms and conditions set forth in Article Eight hereof words “cash, property or securities” shall not be deemed an Insolvency to include shares of stock of the Issuer as reorganized or Liquidation Proceeding (requiring readjusted, or securities of the repayment Issuer or any other corporation provided for by a plan of all Senior Indebtedness reorganization or readjustment which are subordinated in full as a prerequisite to any payments being made right of payment to the Holders) for the purposes of this SectionSenior Indebtedness.
Appears in 1 contract
Samples: Indenture
Payment Over of Proceeds Upon Dissolution, Etc. Upon In the event of any payment or distribution of Properties assets of the Company for the benefit of creditors, marshaling of assets or any bankruptcy, insolvency or similar proceedings of the Company (each such event herein sometimes referred to as a "Proceeding"), then except in connection with the consolidation or merger of the Company or payment on behalf its liquidation or dissolution following the conveyance, transfer or lease of its properties and assets substantially as an entirety, upon the Company with respect to the Notes terms and conditions described in the event of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) Article Eight, the holders of Senior Indebtedness Debt shall first be entitled to receive payment in full full, in cash or cash equivalents, of all amounts due or to become due on or in respect of such Senior Indebtedness, or provision must be made for such payment, Debt before the Holders of the Notes any Security of such series or of any coupon appertaining thereto are entitled to receive any direct payment of principal of , and premium, if any, or indirect interest on the Securities or on account of the purchase or redemption or other acquisition of Securities by the Company ("Securities Payment"), and the holders of Senior Debt shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of which may be payable or interest on the Notes or on account deliverable in respect of the purchase or redemption or other acquisition of Notes; and
(b) Securities in any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in Proceeding. In the event that, notwithstanding the foregoing provisions of this SectionSection 1202, the Trustee or the Holder of any Note Security shall have received any payment or distribution of Properties assets of the Company of any kind or character, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all the Senior Indebtedness Debt is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution distribution, except for amounts subject to the claim granted to the Trustee in the form of Permitted Junior Securities) Section 606 hereof, shall be received and held in trust for the holders of Senior Debt and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent bankruptcy or other Person making payment or distribution of assets of the CompanyCompany for application to the payment of all the Senior Debt remaining unpaid, to the extent necessary to pay all the Senior Indebtedness Debt in full, after giving effect to any concurrent payment or distribution to or for the holders of the Senior IndebtednessDebt. The consolidation For purposes of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance withthis Article Twelve only, the terms and conditions set forth in Article Eight hereof words "any payment or distribution of any kind or character, cash, property or securities" shall not be deemed an Insolvency to include a payment or Liquidation Proceeding (requiring distribution of equity or subordinated securities of the repayment Company provided for by a plan of reorganization or readjustment or of any other corporation provided for by such plan of reorganization or readjustment that, in the case of subordinated securities, are subordinated in right of payment to all then outstanding Senior Indebtedness Debt to at least the same extent as the Securities, as the case may be, are so subordinated as provided in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionArticle Twelve.
Appears in 1 contract
Samples: Indenture (CCC Capital Trust Ii)
Payment Over of Proceeds Upon Dissolution, Etc. Upon Following the occurrence of any distribution of Properties liquidation, dissolution, reorganization or winding-up of the Company Maker, or payment on behalf of the Company with respect any execution, sale, receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization, or other similar proceeding relative to the Notes in the event Maker or a substantial part of any Insolvency or Liquidation Proceeding with respect to the Company:
(a) the holders of its property, all Senior Indebtedness shall first be entitled to receive payment paid in full of such Senior before any payment is made upon any Subordinated Indebtedness, or provision must be made for such payment, before the Holders of the Notes are entitled to receive and any direct or indirect payment or distribution of any kind or characterkind, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption in securities or other acquisition evidences of Notes; and
(b) any direct or indirect indebtedness, the payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly is subordinated to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment which may at the time be outstanding on the same or distribution substantially similar terms as set forth herein), which shall be made upon or in respect of the Subordinated Indebtedness shall be paid to the holders of such Senior Indebtedness; and
, or to any agents or trustees on their behalf (the "Senior Creditors") for application in payment thereof in accordance with the priorities then existing among the Senior Creditors unless and until such Senior Indebtedness shall have been paid or satisfied in full, and the Holder hereby irrevocably authorizes the Senior Creditors, as attorney-in-fact for such Xxxxxx, (a) to vote any claim or proof of claim in such proceedings in respect of the Subordinated Indebtedness, (b) to file or prove any claim in such proceedings in respect of the Subordinated Indebtedness, (c) in the event thatto demand, notwithstanding the foregoing provisions of this Sectionsue for, the Trustee or the Holder of collect and receive any Note shall have received any such payment or distribution of Properties of the Company of any kind or characterdistribution, whether in cash, property or securities, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is paid or provided for in full, then and in such event (d) to apply such payment or distribution to the payment of the then unpaid Senior Indebtedness, in accordance with the priorities then existing among the Senior Creditors, and (e) to take such other than a payment action (including acceptance or distribution rejection of any plan of reorganization) in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets name of the CompanyHolder or of the relevant Senior Creditors as the Senior Creditors, to the extent or any of them, may deem necessary to pay all Senior Indebtedness in full, after giving effect to any concurrent payment or distribution to or advisable for the holders of Senior Indebtedness. The consolidation enforcement of the Company withprovisions hereof; provided, or however that the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof Senior Creditors shall not be deemed an Insolvency authorized under this Section 3 to take any action that releases, reduces or Liquidation Proceeding (requiring otherwise shall adversely affect the repayment Holder's rights against the Maker arising hereunder or that asserts or acknowledges any right of all the Maker or its estate to set off or recoupment against any amount due hereunder or any right to recover from Holder any payments previously made hereunder as preferences or otherwise. The Holder shall execute and deliver such other and further powers of attorney, assignments, proofs of claim or other instruments, and take such other actions, as may be requested by any Senior Indebtedness Creditors in full order to enable such to accomplish any of the foregoing, but only with respect to the Holder's capacity as a prerequisite to holder hereof and not in respect of any payments being made to other relationship between the Holders) for Holder and the purposes of this SectionMaker.
Appears in 1 contract
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in (a) In the event of any Insolvency liquidation, dissolution or Liquidation Proceeding with respect to other winding up of the Company:
(a) the holders of Senior Indebtedness shall be entitled to receive payment in full of such Senior IndebtednessIssuer, whether voluntary or provision must be made for such paymentinvoluntary and whether or not involving insolvency or bankruptcy, before the Holders of the Notes Noteholders are entitled to receive any direct payment on account of principal of or indirect interest on the Notes (and any other amounts payable in respect thereof) including from funds deposited in the Reserve Account, the holders of Other Obligations shall be entitled to receive, for application to the payment thereof, any payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account securities, which may be payable or deliverable in respect of principal of or interest on the Notes or on account of the purchase or redemption in any such case, proceeding, dissolution, liquidation or other acquisition of Notes; andwinding up event.
(b) any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee or otherwise, directly to the holders of Senior Indebtedness or their representative or representatives or to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issued, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior Indebtedness; and
(c) in In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Note Noteholder shall have received in the event of any liquidation, dissolution or other winding up of the Issuer, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, any payment or distribution of Properties assets of the Company Issuer of any kind or character, whether in cash, property or securitiessecurities including from funds deposited in the Reserve Account, by set-off or otherwise, in respect of principal of or interest on the Notes before all Senior Indebtedness is Other Obligations are paid in full or payment thereof provided for in fullfor, and if such fact shall, at or prior to the time of such payment or distribution, have been made known to a Responsible Officer of the Trustee or, as the case may be, such Noteholder, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets of the CompanyIssuer for application to the payment of all Other Obligations remaining unpaid, to the extent necessary to pay all Senior Indebtedness Other Obligations in full, after giving effect to any concurrent payment or distribution to or for the holders of Senior Indebtedness. The consolidation Other Obligations.
(c) For purposes of the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance withthis Article only, the terms and conditions set forth in Article Eight hereof words "cash, property or securities" shall not be deemed an Insolvency to include shares of stock of the Issuer as reorganized or Liquidation Proceeding (requiring readjusted, or securities of the repayment Issuer or any other corporation provided for by a plan of reorganization or readjustment which are subordinated in right of payment to all Senior Indebtedness Other Obligations which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Notes are so subordinated as provided in full as a prerequisite to any payments being made to the Holders) for the purposes of this SectionArticle.
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Samples: Indenture (Bank Bradesco)
Payment Over of Proceeds Upon Dissolution, Etc. Upon any distribution of Properties of the Company or payment on behalf of the Company with respect to the Notes in (a) In the event of any Insolvency or Liquidation Proceeding Proceeding, (1) all Senior Indebtedness under or with respect to the Company:
Credit Agreement and (a2) the holders all amounts payable in respect of any other Senior Indebtedness shall first be entitled to receive payment paid in full of such Senior Indebtedness, or provision must be made for such payment, before the Holders holders of the Notes are entitled to receive any direct or indirect payment or distribution of any cash, property or securities (excluding Reorganization Securities) on account of principal of or interest on the Notes.
(b) The holders of Senior Indebtedness or their respective Representatives shall be entitled to receive directly, for application to the payment thereof (to the extent necessary to pay all such Senior Indebtedness in full after giving effect to any substantially concurrent payment or distribution to the holders of such Senior Indebtedness), in the following order of priority, any payment or distribution of any kind or character, whether in cash, property or securities (other than Permitted Junior Securities) on account of principal of or interest on the Notes or on account of the purchase or redemption or other acquisition of Notes; and
(b) excluding Reorganization Securities but including any direct or indirect payment or distribution of Properties of the Company of any kind or character, whether in cash, property or securities (other than a payment or distribution in the form of Permitted Junior Securities), by set-off or otherwise, to which the Holders or the Trustee, on behalf of the Holders, would be entitled but for the provisions of this Article shall be paid by the Company or by any liquidating trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcyexcept Reorganization Securities, a receiver which may be payable or liquidating trustee or otherwise, directly deliverable by reason of the payment of any other Indebtedness of the Company being subordinated to the holders payment of the Notes) which may be payable or deliverable in respect of the Notes in any such Insolvency or Liquidation Proceeding: first, so long as any Senior Indebtedness under or their representative or representatives or with respect to the trustee or trustees under any indenture under which any instruments evidencing any of such Senior Indebtedness may have been issuedCredit Agreement is outstanding, ratably according to the aggregate amounts remaining unpaid on account of the Senior Indebtedness held or represented by each, to the extent necessary to make payment in full of all Senior Indebtedness after giving effect to any concurrent payment or distribution to the holders of such Senior IndebtednessIndebtedness (pro rata on the basis of the respective amounts of such Senior Indebtedness held by them) or their Representatives; and, second, if and only if all Senior Indebtedness under or with respect to the Credit Agreement is paid in full, to the holders of any other Senior Indebtedness (pro rata on the basis of the respective amounts of such other Senior Indebtedness held by them) or their respective Representatives.
(c) in In the event that, notwithstanding the foregoing provisions of this SectionSection 7.2, the Trustee or the Holder holder of any Note shall have received any payment from or distribution of Properties assets of the Company or the estate created by the commencement of any such Insolvency or Liquidation Proceeding, of any kind or charactercharacter in respect of the Notes, whether in cash, property or securitiessecurities (excluding Reorganization Securities but including any payment or distribution, except Reorganization Securities, which may be payable or deliverable by set-off or otherwise, in respect reason of principal the payment of or interest on any other Indebtedness of the Notes Company being subordinated to the payment of the Notes) before all Senior Indebtedness is paid or provided for in full, then and in such event such payment or distribution (other than a payment or distribution in the form of Permitted Junior Securities) shall be received and held in trust for and shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other Person making payment or distribution of assets holders of the CompanySenior Indebtedness remaining unpaid or their Representative, to the extent necessary to pay all such Senior Indebtedness in full, full after giving effect to any substantially concurrent payment or distribution to or for the holders of such Senior Indebtedness. The consolidation of , for application to the Company with, or the merger of the Company into, another Person or the liquidation or dissolution of the Company following the sale, assignment, conveyance, transfer, lease or other disposition of all or substantially all its Properties to another Person or group of Affiliated Persons pursuant to, and in compliance with, the terms and conditions set forth in Article Eight hereof shall not be deemed an Insolvency or Liquidation Proceeding (requiring the repayment of all Senior Indebtedness payment in full as a prerequisite to any payments being made to the Holders) for the purposes of this Sectionsuch Senior Indebtedness.
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